UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


TREATISE 

ON    THE 

PRINCIPLES  AND  PRACTICE 

OF   THE 

ACTION  OF  EJECTMENT, 


AND 


THE  RESULTING  ACTION  FOR 

MESNE  PROFITS. 


THE    THIRD    EDITION, 
WITH  CONSIDERABLE   ADDITIONS 


BY   JOHN  ADAMS, 


SERJEANT    AT    LAW. 


LONDON: 
SAUNDERS  AND  BENNING,  LAW-BOOKSELLERS, 

(SUCCESSORS  TO  J.  BUTTERWORTH  AND  SON,) 

43,  FLEET  STREET. 

1830. 


T 


LONDON: 
IBOTSON  AND  PALMER,  PRINTERS,  SAVOY  STREET,  STRAND. 


PREFACE 


TO   THE 


THIRD   EDITION 


THE  peri6d  which  has  elapsed  since  the  publication 
of  the  Second  Edition  of  this  Treatise,  has  been 
marked  by  important  changes  in  the  practice  of  the 
Action  of  Ejectment,  as  well  as  in  other  branches  of 
our  law.  These  changes  are  incorporated  in  this 
Edition ;  and  they  will  be  found  to  comprise  many 
useful  alterations,  especially  in  the  regulation  of  the 
Action  as  between  Landlord  and  Tenant. 

From  the  practice  which  has  of  late  years  pre- 
vailed, of  giving  publicity  to  every  adjudged  case, 
however  special  the  facts,  or  self-evident  the  pro- 
positions, the  Author  has  been  compelled  to  add 
above  two  hundred  new  cases  to  the  present  Edition. 
Some  of  them  have  been  inserted  only  because 
the  Author  could  not  venture  to  omit  them ;  but 
others  will  be  found  which  determine  points  before 

a  2 


iv  PREFACE. 

doubtful,  and  many  which  contain  valuable  elucida- 
tions of  principles  heretofore  obscurely  laid  down, 
or  imperfectly  understood. 

The  whole  work  has  also  been  carefully  revised  ; 
and  the  Author  trusts  that  his  increased  experience 
has  enabled  him  materially  to  diminish  its  imper- 
fections :  that  experience  has  not  however  removed 
the  diffidence  with  which  he  first  offered  his  Treatise 
to  the  profession,  nor  tended  to  lessen  his  grateful 
recollections  of  the  kind  indulgence  with  which  the 
former  Editions  were  received. 


12,  SERJEANT'S  INN, 
Nov.  1,  1830. 


PREFACE 


TO    THE 


IT  has  been  the  Author's  chief  endeavour  in  the 
following  pages,  to  investigate  the  principles  upon 
which  the  remedy  by  ejectment  is  founded ;  to 
point  out  concisely  the  different  changes  which 
the  action  has  undergone;  and  to  give  a  full  and 
useful  detail  of  the  practical  proceedings  by  which 
it  is  at  this  time  conducted.  To  this  end  the 
later  decisions  have  been  very  fully  considered ; 
whilst  a  slight  mention  only  has  been  made  of 
the  more  ancient  cases,  now,  for  the  most  part, 
indirectly  over-ruled,  or  altogether  inapplicable  to 
the  modern  practice. 

Before  the  time  of  LORD  MANSFIELD,  indeed, 
no  regular  system  seems  to  have  been  formed  for 
the  government  of  the  action  ;  and  that  illustrious 
judge,  considering  an  ejectment  as  a  fiction  in- 


PREFACE. 


vented  for  the  purposes  of  individual  justice,  en- 
deavoured to  mould  it  into  an  equitable  remedy, 
and  to  regulate  it  by  maxims,  in  some  degree  in- 
dependent of  the  general  rules  of  law,  as  well  as 
of  the  practice  in  other  actions.  The  erroneous 
principles  on  which  this  system  was  founded  were 
pointed  out  by  the  late  LORD  KENYON  ;  and  a  ma- 
terial alteration,  in  the  mode  of  conducting  the 
'action,  took  place  from  the  time  of  his  Lordship's 
elevation  to  the  Bench.  By  his  sound  and  lumi- 
nous decisions,  the  remedy  has  been  placed  upon 
its  true  principles  ;  and  he  lived  to  see  a  system 
nearly  completed,  which,  uniting  the  equitable 
fictions  of  the  particular  action  with  the  general 
principles  of  law,  has  preserved  unbroken  the  great 
boundaries  of  our  legal  jurisprudence,  and,  at  the 
same  time,  rendered  the  remedy  most  useful  and 
comprehensive.  The  correct  principles  established 
by  this  great  lawyer  still  prevail,  having  been 
uniformly  maintained,  and  ably  illustrated,  by  the 
more  recent  decisions  of  the  different  courts. 

The  Author  has  enlarged  upon  these  circum- 
stances, in  order  to  account  for  the  personal 
judgment  he  has,  in  some  instances,  found  it  ne- 
cessary to  exercise  with  regard  to  decisions  an- 
terior to  the  time  of  Lord  KENYON  ;  many  cases 


PREFACE.  Vll 

v 

being  still  extant  as  authorities,  which  seem  wholly 
inconsistent  with  the  modern  principles  of  the  ac- 
tion of  ejectment. 

The  application  of  the  remedy,  as  between  land- 
lord and  tenant,  forms  also  a  material  part  of  this 
treatise ;  and  it  has  there  been  the  Author's  endea- 
vour to  give  some  useful  practical  directions  re- 
specting notices  to  quit,  and  the  manner  of  pro- 
ceeding on  the  forfeiture  cf  a  lease,  at  the  same 
time  explaining  the  principles  upon  which  those 

directions  are  founded. 

/ 

The  evidence  necessary  to  support  and  defend 
the  action  in  common  cases  has  also  been  con- 
sidered :  and  instructions  for  proceeding  according 
to  the  ancient  practice  have  been  added,  as  far  as 
can  be  necessary  at  the  present  time. 

For  practical  forms  in  ejectment,  the  reader  is 
referred  to  those  contained  in  Mr.  TIDD'S  Appen- 
dix to  his  Practice  of  the  Court  of  King's  Bench : 
a  collection  which  appears  to  the  Author  too  com- 
plete to  require  addition,  and  too  accurate  to  be 
susceptible  of  improvement. 

5,  SERGEANT'S  INN, 
May  1,  1812. 


CONTENTS. 


CHAPTER  I. 

Of  the  Origin — Progress — and  Nature  of  the  Action  of  Eject- 
ment. 

Page 

Definition  of  the  action   .  .             .             .             .1 

Its  origin       .             .             .  .             .                           8 

History  of  its  ancient  practice  .             .             .             .11 

modern  practice  ...            ...           ,.       .15 


CHAPTER  II. 

Of  what  things  an  Ejectment  will  lie,  and  how  they  are  to  be 

described. 

Of  what  things  an  ejectment  will  lie      ;.  .  .     18 

How  they  are  to  be  described  .  .  .     23 


CHAPTER  III. 

Of  the  Title  necessary  to  support  the^  Action  of  Ejectment. 

Of  the  general  requisites  of  title  '-....-         ,  .     32 

Of  discontinuance  .         . j  j  .•  .     35 

Of  descent  cast  41 


X  CONTENTS. 

Page 

Of  the  statute  oflimitations      .         .             .  .     45 

Of  the  persons  who  by  reason  of  their  several  titles  may 

maintain  ejectment          .             .  .59 

Tenant  for  years,  for  life,  in  tail,  in  fee  .     .       59 

Mortgagee          .             .             .             .  .60 

Lord  of  a  manor       .             .             .  61 

Copyholder         .            .            .             .  .63 

Lessee  of  a  copyholder          .             .  65 

Widow  for  her  free  bench         "  .             .  .65 

Guardian      .             .             .             .  66 

Infant     .             .                          .             .  .       67 

Assignee  of  a  Bankrupt              .             .  .67 

an  Insolvent  Debtor       .  .       .       67 

Conusee  of  a  statute  merchant,  or  staple  .       69 

Tenant  by  elegit       .             .             .  69 

Personal  representative                .             .  .70 

Devisee        .            .            .             .  71 

Grantee  of  a  rent-charge             .             .  .71 

Assignee  of  the  reversion      .             .  72 

Adverse  possessor  for  twenty  years          .  .77 

Corporation              .             .             .  79 

Churchwardens  and  overseers  of  the  poor  .       79 

Rector  or  vicar             '   .            .            .  .80 

Trustees       .            .            .            .  81 

Joint-tenant,  &c.            ...            .             .  .91 

Lunatic        .             .             .             .  .       .       91 

Person  claiming  under  an  award            ..  •  .       91 

CHAPTER  IV. 

Of  the  Cases  which  require  an  actual  Entry  upon  the  Land  be- 
fore Ejectment  brought. 

In  what  cases  an  entry  must  be  made                 .--  „       93 

By  whom  the  entry  must  be  made                .  '.       ;•      99 

Mode  of  making  the  entry         .             .            '.  .100 


CONTENTS.  XI 


CHAPTER  V. 

Of  the  Action  of  Ejectment  as  between  Landlord  and  Tenant. 

Page 

Of  the  notice  to  quit, 

Origin  and  history  of      .                 .  .,         .  ..     105 

When  necessary,  and  when  not  .             .       .     108 

By  whom,  and  to  whom  to  be  given  .             .*    126 

Service  of                      .             .  .                         131 
Form  of     .            ..           .           ..-...*  .     132 

Period  of  its  expiration          .  :.  .           •  •;.'     .     137 

How  waived            .             .             .  .             .     149 

Of  provisoes,  &,c.  in  leases  for  re-entry, 

Origin  and  history  of                .  .,            .       .     157 

What  covenants  are  valid                .  .  ,           .     158 

Proceedings  on,  for  rent  in  arrear  .             .       .160 

Covenants,  how  broken       .             .  .             .177 

Who  may  bring  ejectment  on  .                    .     189 

How  waived                .             .  .             .              192 

Period  of  their  operation     .           '.  .            .198 

CHAPTER  VI. 

Of  the  Cases  in  which  the  Ancient  Practice  is  still  necessary. 

On  a  vacant  possession  .  V        ''  V'          .     199 

In  an  inferior  court  .  /          .  .  »  '    ;     199 

How  to  proceed  .  .  .          <  '.  . .    200 


CHAPTER  VII. 

Of  the  Declaration  in  the  Modern  Action  of  Ejectment  and  the 
Notice  to  appear. 

Of  the  declaration, 

How  entitled  207 


Xii  CONTENTS. 

Page 

Of  the  declaration, 

Venue         ....  •     209 

Demise  .... 

Entry         .                         .  .221 

Ouster  ...  .  222 

Of  amending  the  declaration  .  224 

Of  the  notice  to  appear  .  .  . "  ,.  229 

CHAPTER  VIII. 

Of  the  Service  of  the  Declaration,  and  Proceedings  to  Judg- 
ment against  the  Casual  Ejector,  when  no  Appearance. 

Of  the  service  of  the  declaration  .            .            .  234 

the  affidavit  of  service  .            .            .       .  242 

moving  for  judgment  .             .             .  247 

the  time  for  appearance  .             .            .  248 

filing  common  bail  1             .             •             •  250 

signing  judgment          .  .             .                    .  251 

setting  aside  judgments  .             .                          •  252 

CHAPTER  IX. 

Of  the  Appearance — Plea — and  Issue. 

Who  may  appear  .....  254 

Of  the  consent  rule  .  .  .  ...  262 

consolidation  rule  .  .          •  .  -  .  264 

How  to  appear        .  ,  .  .  .       .  265 

Of  the  proceedings  after  appearance      .  %          ^  .  269 

the  plea  .  .  .  .      .  270 

the  issue      ......  273 

CHAPTER  X. 

Of  the  Evidence  in  the  Action  of  Ejectment. 

On  the  part  of  the  lessor, 

general  points  relating  to          /  .  .       /    276 


CONTENTS.  Xlll 

Page 

On  the  part  of  the  lessor, 

By  Heirs                '.  •     281 
Devisees    . 

Tenants  by  elegit          .             .             .  .301 

Conusees  of  statutes  merchant  and  staple  .     301 

Rectors  and  vicars               .             /'         V  .     302 
Guardians         .....     305 

Assignees  of  bankrupts      .'             .             .  305 

insolvent  debtors  .     306 

Personal  representatives     .             .             •  306 
Mortgagees      ...                                   .  ••    306 

Lords  of  manors     .  „          .                          .  .'   307 

Copyholders                  .             .  •     309 

Lessees  of  copyholders        .                         •  •    309 

Landlords         .             .             .  .310 

Assignees  of  reversion          .                          .  .     318 

On  the  part  of  the  defendant    .   .  •     319 

CHAPTER  XI. 

Of  the  Trial  and  subsequent  Proceedings. 

Of  the  trial             .            .            .            .            .  .     320 

judgment           j          ,  .            .'         . .  .     327 

costs  -                       .            .            .             .  335 

execution            .             .             .             .  .     339 

writ  of  error           .  .            .             .             .  347 

bringing  a  second  ejectment              .            .  .    351 

CHAPTER  XII. 

Of  Staying  the  Proceedings  in  the  Action  of  Ejectment. 

Until  particulars  of  breaches  be  given          .            .  .    353 

security  be  given  for  costs             .             .  .     353 

costs  of  a  former  ejectment  be  paid                 .  .     355 

When  two  actions  are.  depending  for  same  premises  .     361 

Upon  Stat.  7.  Geo.  II.  c.  20            .                        .  .    361 

Stat.  4  Geo.  II.  c.  28  366 


XIV  CONTENTS. 


CHAPTER  XIII. 
Of  the  Statutes  1  Geo.  IV.  c.  87,  and  I  Wm.  IV.  c.  70. 

Page 

Of  the  Stat.  1  Geo.  IV.  c.  87          .  .  .       .     367 

Of  the  Stat.  1  Wm.  IV.  c.  70.  .     376 


CHAPTER  XIV. 

Of  the  Action  for  Mesne  Profits. 

Origin  and  nature  of           .             .            V  .       .     379 

By  whom  to  be  brought             .                          .  .     382 

Against  whom         .             .             .             .  .            383 

Of  the  pleadings            .             .   •        ..             *  ,     384 

evidence       .             .            .            .•  .           388 

damages              .             .             .             .  .391 

costs             ,             .             .•          • .   :  .       .     393 

APPENDIX  OF  FORMS  I  ...     395 

.         " .            .           T          ' .  .       .     404 


TABLE   OF   CASES   CITED. 


A. 

Abbolt,  Wilson  v. 
Ablett  v.  Skinner     . 
Abrahams,  Doe,  d.  Biddle  v. 
Adams,  Fitchet  v.             . 

PAGE 
.    140 

.  221 
.  276 
.  100 
221,  222 
.     .  289 
.  204 
290,  293 
388,  389 
v.   .  168 
.  298 
109,  196 
.     .  203 
.     32 
.  381 
r.   21,  30 
.  355 
.     .     30 
.     69 
3.56,  357 
.  245 
.  348 
.  229 
.  232 
.  207 
.     .  207 
.  237 
.     .  243 
.  236 
.     .  354 
.     22 
.  375 
.     .     29 
.  338 
.     27 
.     .  207 
.  263 

Anon  (11  Mod.  354) 
(12  Mod.  313) 
(12  Mod.  211)  . 
(12  Mod.  384)    . 
(M.  T.  1817)      . 
(Ld.  Rayd.  728)      . 
-  (Salk  257) 

PAGE 

.  280 
.  238 
255,  2/V? 
.  286 
.     .  232 
.  324 
.  229 
355,  357 
204,  382 
.     .  289 
.  101 
.     .  339 
.  158 
.     .  354 
.  330 
.  295 
.     .  257 
.  365 
.   136 
.     14 
v.    .  227 
.  151 
.     .  198 
.     75 
.  365 
.     .  38« 
v.      .115 
.     2;> 
.     .  299 
.  355 
.  304 
.     .  292 
.  292 
.  100 
.  100 
.  355 
.    76 
.     29 

-  (Salk  255) 

Addison  v.  Sir  John  Otway 
Addy  v.  Grix 
Aislin  v.  Parkin    .  212,  382, 
Alexander,  Doe,  d.  Schufield 

(Salk.  260) 
.  C*skin     174A 

(Skin.  412)     . 
(2  Sid.  155) 
...   .  -  (1  Vent  °18) 

Allen,  Doe,  d.  Shephard  v. 
v.  Foreman 

(1  Wils.  130)     . 
(Yelv.  166.) 
Ansty  v.  Dowsing 
Archer,  Lamb  v. 

,  Harris  v.    .            . 
Alker,  Goodtitle,  d.  Chester 
Alston,  Doe.  d.  Selby  v.  . 
Andrews,  Whittinghaui  v. 

....     _  Tlnp  A    TJnHrl  v 

Argoll  v.  Cheney     . 
Armitage,  Doe,  d.  Beaumont 
Armstrong,  Messenger  v. 
Arnsby  v.  Woodward 
Arthur,  Vivyan  v.        .         . 
Ash,  Felton  v.      . 
Astlim  v.  Parkin 
Ashburner,  Roe,  d.  Jackson 
Ashworth  v.  Stanley         . 
Askew,  Carey  v. 
Atherley,  Doe.  d.  Hamilton 
Atkins  v.  Hatton     . 
Atkinson,  Grayson  v. 
Attorney  General  v.  Barnes 
Audley's  case   . 
v.  Pollard    . 
Austine  v.  Hood 
Awder  v.  Nokes 
Aylott,  Cole  v.     . 

Angel,  Keene,  d.  Angel  v. 
Anon  (1  Barnard,  330)     . 
(2  Brown,  253) 
(1  Chitty,  573) 

.  (9  fhittv     171^ 

('2  Chitty,  172) 
(2  Chitty,  173)      . 
(2  Chitty,  176) 
(2  Chitty,  181)  . 
(2  Chitty,  182)     -  . 
(1  Cowp.  128)     . 

.     .       .  I  of  T\-l     nz\ 

(ID.  &R.  435) 

^jjyer,  no; 
(  1  Freem,  373) 
(3  Leon,  210) 

(fi  Mnrl    <?<J9'\ 

(7  Mod.  39) 

XVI 


TABLE    OF    CASES    CITED. 


U. 


Badtitle,  Doe  v  .....  245 
--  ,  Goodtitle,  d.  Gardner  v.  269 
--  ,  -  ,  d.  Price  v.  .  207 
,  d.  Read  v.  .236 
,  d.  Roberts  v.  238 
--  j  -  ,  d.  Sandys  v.  246 
--  ,  -  ,  d.  Wanklin  v.  243 
--  ,  Goodright,  d.  Ward  v.  273 
--  ,  Lackland,  d.  Dowling  v.  232 
Badger  v.  Floyd  .  %  .  351 

Badmering,  Pike  v.     .  .     .  298 

Bagshaw,  d.  Ashton  v.  Toogood      239 
Bailey,  Tiley  v.    .  .  .  337 

Baker,  Whitlock  v.      .  .     .  286 

--  v.  Mellish  .  88,  276,  310 

--  v.  Roe         .  .  .19 

-  ,  Doe,  d.  Green  v.        .127,128 
Bally  v.  Wells    ....     73 
Baldwin,  Goodtitle,  d.  Parker  v.      78 
Ball,  Partridge  v.      .      .60,216,217 
Baldwin,  Brooke,  d.  Mence  v.       .  342 

-  v.  Wine     .        .    29,  30,  81 
Bank  of  England,  Glynn  v.     .     .304 


Banks,  Doe,  d  Bryan,  v. 
Barnes  v.  Bulmer 
v.  Peterson 


--  ,  Attorney  General  v 
Barrett,  Smith  v.          . 
Barber,  Doe,  d.  Crisp  v.     . 
Barclay,  Doe,  d.  Church  v. 
Bartlett,  Howard  v.     .         . 
Barry,  Morris  v.  . 

--  ,  Morres  v.  .  . 

Barton,  Thre'r  v.  . 

Barefoot  v.  Fry  . 

Barnardiston,    Smith,     d. 

ger  v.  . 

Barker,  Omichund  r.        . 
Barlow,  Highmore  v.     .       . 
Barney,  Stocker  v.  .         . 
Barnaby,  Turner  v.     .         . 
Barwick  d.  Mayor  of  Richmond 


194,  198 
.  239 
.  24,  25 
.  292 
.  .  19 
.32 
.  .  359 
.66 
.  210 
.  323 

.76,190 

.       .  352 

Gin- 

339, 357 
.  295 
.  203 
.77 

322,  334 


v.  Thompson  .  .  .  276 

Barnard,  Murthwaite  v.  .  .  87 

Barlte,  Doe,  d.  Nethercote  v.  .  .  300 
Bass  v.  Bradford  .  .  .273 

Bateman,  Doe,  d.  Freeman  v.  .  192 
Bath  (Earl  of)  v.  Sherwin  .  .352 
Batten,  Doe,  d.  Cheney  v.  150,154, 
173,  380 
Bawden,  Right,  d.  Dean  of  Wells 

v.  .  .  .  .  124 

Baxter,  d.  Abrahall  v.  Brown  .114 
---  ,  Earl,  d.  Goodwin  v.  .  318 
Bayliss,  Doe,  d.Morland  v.  236,  245 
Beard,  Chapman  v.  .  .  303 

—  —  ,  Right,  d.  Lewis  v.  .  107,  121 
Beauchampand  Burt,  ex  parte  .201 
Beauclerk,  Renrick  r.  .  .  83,  86 
Beck,  d.  Hawkins  v.  Welsh  .  67 
Bedell  v.  Constable  .  .  66 


PAGE 

Bedwell,  Thurstout  v.        .    320,  335 
Belcher,  Thunder,   d.  Weaver  v. 

61, 107,  109,  122,  307 

Bell,  Doe,  d.  Rigge  v.  107,  111,144, 

178,  305 

v.  Harwood  .  .  280 

Bellamy,  Doe,  d.  Burrell  v.  64,  66,  287 
Bennett,  Doe,  d.  Lucy  v.  .  .  340 
Benson,  Doe,  d.  Hall  v.  .  136,  145 
Bentley  v.  Poole  .  .  .113 
,  Thrograorton,  d.  Fair- 
fax v.  .  .  .  323 
Bennington  v.  Goodtitle  .  .  24,  25 
Benion,  Legg,  d.  Scot  v.  .  130,  132 
Benson,  Pleasant,  d.  Hayton  v.  .130 
Benn  d.  Mortimer  v.  Denn  .  .  359 
Bengo,  Sleaburne  v.  .  .  339 
Bent,  Worrall  v.  .  .  .  329 
Berkley  Peerage  case  .  .  285 
Berrington,  d.  Dormer  v.  Park- 
hurst  .  .  .95, 102, 214 
Berney,  Stocker  v.  .  .77 
Bery,  King  v.  .  .  .20 
Bettison  v.  Bromley  .  .  .  296 
Bethill,  Floyd  v.  .  .  .  343 
Bevan,  Doe,  d.Goodbehere  v.  180,  181 
Biggs,  Doe,  d.  Leicester  v.  82,  86, 


120,314 
.  23,  27 
.  365 
.  279 
.     .  110 


Bindover  v.  Sindercombe  . 
Bingham,  d.  Lane  v.  Gregg 
Bingham,  Doe,  d.  Lewis  v. 
Bishop  v.  Howard  r"  .  . 

Birch  v.  Wright,    60,    109,  137, 

154,  307,  381 
Bird,  Doe,  d.  Hellings  v.         .      .     55 

v.  Snell        .  i    '         .204 

Birkbeck  v.  Hughes  .  .  .  245 
Bissell,  Morgan,  d.  Dowding  v.  .  117 
Blades,  Harrison  v.  .  .  .284 
Blakey,  Clayton  v.  107,111,122,178 
Blackman,  Goodwin  v.  .  219,  221 
Blackham,  Smith  v.  .  .  280 

Bliss,  Doe,  d.  Boscawen  v.  .  .  193 
Bluck,  Doe,  d.  Morgan  v.  34,  81,  341 
Bodily,  Grumble  v.  361 

Boner  v.  Juner      .  .  .  210 

Bond  v.  Seawell       .  .         .  293 

,  Doe,  d.  Darlington,    Earl 

of,  v 185 

Boulton,  Doe  d.  Parker  v.  .  121,  123 
Bourne,  Hunt  v.  .  .  .  97,  98 


v.  Turner     .         .  .  279 

Bouchier  v.  Friend      .  .     .  250 

Bradford,  Bass  v.      .  .  273 

Braham,  Goodtitle,  d.  Revett  v.  .  288 
Breach,  Doe,  d.  Oldershaw  v.  .  188 
Bragg,  Doe,  d.  Scales  v.  .  .  279 

Bracebridge  v.  Buckley  .  .  183 
Brandling,  Doe,  d.  Bywater  v.  .  188 
Brenton,  Doe,  d.  Carthew  v.  358,  361 
Brewer,  d.  Lord  Onslow  v.  Eaton  174 

,  Doe,  d.  Byne  v.       .  204,  274 

Brewster,  Hillingsworth  v.    .19,  261 


TABLE    OF    CASES    CITED. 


XV11 


PAGE 

Brewster,  Medlicot  v.  .  .  264 
Brend.Tunstall  v.  .  .  .208 

Bright  wen.  Doe,  d.Milner  v.  .  .48 
Brittle  v.  Dade  .  .  .  272 

Brice  v.  Smith  .  .  .  294 

Brickhurst,  Ramsbottom  v.  .  SOI 

Britts,  Hunter  v.  .  .  .  390 

Bristow  (Mayor  of,)  Rex.  v.  .  199 
Bridges  v.  Brooke  .  .  391 

Britain,  Doe,  d.  Coleman  v.  .  .  68 
British  Museum,  Trustees  of,  v. 

White  .  .  .  .  291 

Brown's  Case  .  .  40 

-,  Doe,  d.  Warner  v.  106,  107, 

111,122 

— ,  Holmes,  d.  Brown  v.  .  326 

,  Baxter,  d.  Abrahall  v.  .114 

,  Doe,  d.  James  v.  .  .  302 

Brooke  v.  Bridges  .  .  .  391 

Brooke,  d.  Mence  v.  Baldwin  .  342 
Broderick  v.  Broderick  .  .  294 
Bromley,  Bettison  v.  .  .  .  296 

Brougbton  v.  Langley  .  .82 

Bryan,  d.  Child  v.  Winwood  .  52 
Brydon,  Gates,  d.  Wigfall  v.  33,  95. 

263 
Buckley  v.  Buckley  .  .  256 

,  Bracebridge  v.  .  .  183 

Bucknell,  Weakley,  d.  Yea  T.  33,  112 
Budden,  Doe  d.  Nepean  v.  .  .  308 
Butler,  Doe  d.  Phillips  v.  .  .  142 
Bugby,  Crusoe,  d.  Blencowe  v.  .  177 
Bulmer,  Barnes  v.  .  .  349 

Burbury  v.  Yeomans  .  .  .  26 

Burchett  v.  Durdant  .  .  82 

Burghers  of  Carmarthen,  Rex  v.  325 
Burghers,  Grimstone,  d.  Lord 

Gower  v.  .  .  264 

Burne  v.  Richardson  .  .  .  383 

Burt  and  Beauchamp,  ex  parte  .  201 
Bury,  Phillips  v.  .  270 

Butcher,  Doe,  d.  Taggart  v.  338,  346 
Byron,  Lord,  Deardon  v.  .  .  352 


C. 


Calvert,  Doe,  d.  Ash.  v.  150,  289,  315 

v  Horsefall      .  .     .  389 

Calcraft,  Wadman  v.         .  .171 

Camell  v.  Clavering     .  .80 

Capel  v.  Saltonstall          .  .  228 

Carleton,  d.  Griffin  v.  Griffin  .  293 
Cartwright,  d.  Denn,  Jacklin  v.  .  137 
Carter,  Doe,  d.  Mitchinson  v.  .180 

v.Cromwell     •         .217,218 

Doe  d.  Kerby  v.      .        .  121 

Carey  v.  Askew         .  .      .  299 

Casson  v.  Dade        .  .         .  294 

Cator,  Goodright,  d.  Hare  v.  60,  93, 

95, 102,  158 

Challenor  v.  Thomas  .        .21 

Chapman  T.  Sbarpe         .  .    66 


PAGE 

Cbaworth  v.  Phillips        .  .    76 

Cbarnock,  Roe,  d.  Henderson  v.  141 
Chater  v.  Hawkins  .  .  .  29.5 

Chaplin,  Radcliffe  v.         .  .  287 

,  Doe.  d.  Whayman  v.  127, 128 

Chapman  v.  Beard  .  .  .  303 
Chamier  v.  Llingon  .  .  383 

Cheney,  Argoll  v.  .  ,{]  .-.  .  14 
Checy,  Peto  v.  .  .  .  204 

Chetwynd.Wyndhamv.  .  .  295 
Church,  Doe,  d.  Morgan  v.  .  .136 
Clavering,  Camell  v.  .  .  80 

Clarke,  Kinaston  v.  .         3O5 

-v.Phillips  .  .101 

,  Doe  d.  Grundy  v.     .     34,  80 

,  — ,  d.  Lockwood  v.       .  181 

,  — ,  d.  Spencer  v.      .     .366 

,  — ,  d.  Thompson  v.       .    53 

Clare,  Doe,  d.  Coore  v.  .  .  1 15 
Clayton  v.  Blakey  1 07, 1 1 1 ,  1 22,  1 78 
Clayton's  case  ....  223 
Claphara,  Holdfast,  d.  Woollams»v.  65, 

286 

Claxmore  v.  Serle  .  *  •  -  .  323 
Cleabourne,  Jordan  v.  ...  .  28 
Ctements,  Doe,  d.  Folkes  v.  .  62 
Clerke  v.  Rowell  .  .  215,  327 

.Linsey  v.        .  .     .  331 

Close's  case  .  .  -.-*-..-.  382 
Clyraer  v.  Littler  .  .  .  237 

Cock,  Doe,  d.  Lord  Darlington  v. 

235,  241 
Cocks  v.  Darson 
Cocke,  Sherman  v.  . 
Cole  v.  Aylott 

,  Taylor  v.     - 

,  Wade  v.      . 

,  Small,  d.  Baker  v. 

Coles,  Doe,  d.  Lewis  v. 
Collins  v.  Silley     « 
Colley,  Wilkinson  v. 
Comyn  v.  Kineto 

v.  Wheatley 


,  St.  John  v. 

Coningsby,  Lord's  case 
Constable,  Bedell  v.  . 
Connor  v.  West 

Congleton,  Mayor  of,  v.  Pattison 
Constable,  Parker,  d.  Walker  v. 

106, 125 


.    91 

.  199 

.  29 
.  .  69 

.  66 
324,  331 

.  226 
.  .  76 

.  129 
.  .  20 

.  20 
.  23, 24 

.  326 
.  .  66 

24,28 
74 


Cooke,  Ogle  v.  . 
Cooke,  Higbam  v. 
-,  Roberts  v. 


Cooper,  Doe,  d.  Tilyard  v.       .     . 
Cope,  Glover  v.  . 

Copeland,  Doe,  d.  Palmerston  v. 

v.  Stephens 

Coplestone  v.  Piper     .  .    . 

Copous,  Oakapple,  d.  Green  v.    . 
Corbett,  Doe,  d.  Corbett  v.  . 
Cordwent,  Goodright,  d.  Chester 

v.  .  150,  174 

Cotterell  v.  Dutton    .  .      .    58 

b 


297 
223 
357 
260 
77 
323 
69 
25 
314 
301 


xvm 


TABLE    OF    CASES    CITED. 


PAGE 

Cottingham  v.  King  .     24,  219 

Cowley,  Jemott  v.  .  .71 

Crabb,  Smith  v.  .  •  264 

Creach  v.  Wilmot  .  .    52 

Cread,  Doe,  d.  Cheese  v.  .  70 

Crick,  Doe,  d.  Lord  Macartney 

v.  131,  132 

Crofts  v.  Pick  .  .69 

Crocker  v.  Fothergill  .  .  20 
Cromwell's  case  .  .  38 

Crouch,  Doe,  d.  Jones  v.  .184 

Croker,  Evans  v.  .  .  223 

,  Stephens  v.  .  ••         .223 

Croft  v.  Pa wlet  .<(  .294,298 
Cromwell.  Carter  v.  .  217,  218 

Crusoe,  d.  Blencowev.  Bugby  .  177 
Cuff,  Doe,  d.  White  v.  .  .  271 
Cuthell,  Right,  d.  Fisher  v.  126,  128 
Cutts,  Jen  ny.d.  Preston  v.236, 244, 246 
Cutting  v.  Derby  •  --.<•'•  .383 

D. 

Dacre's  case  .  .     27, 28 

Dade,  Brittle  v.         •'••.<•  .  272 

— — ,  Casson  v.  .  .  294 

Dale,  Smales  v.  '          .  .  54,  98 

,  Hooper  v.  .  .  204 

Dann  v.  Spurrier  .  .  138 

Danvers  v.  Wellington    .  .     26 

,  Doe,  d.  Cook  v.       42, 50,  299 

Dancaster,  Lovelock,  d.  Norris  v.  259, 

260 

Darby,  Right,  d.  Flower  v.  124,  139 
140,  143 

— ,  Doe,  d.  Holmes  v.          .  155 

Darson,  Cocks  v.  .  .91 

Davis,  Doe,  d.  Davis  v.  .  .  98 
Davids,  Goodright,  d.  Walter  v.  192 
Davy  v.  Smith  .  .  293 

Davenport  v.  Tyrrell  .  .  56 
Davies,  Goodtitle  v.  ••*••  .  245 

,  Martin  v.  .  .  261 

v.  Moggridge         .          .  338 

v.  Pierce  .  .281 

,  Doe  v.      .336,385,391,393 

,  Roe,  d.  West  v.      .  160, 162, 

166,  168,  169 

,Doe  d.Challnorv.52,311,316 

,  d.  Povey  v.  Doe      .    352,  345 

, v.Purdy  .  .  223 

Dawson,  Roe,  d.  Saul  v.  .  341 

Deardon,  Keene,  d.  Byron  v.  .  51,  83, 

89,  349,  350 

Dean,  Fenn.  d.  Knight  v.  .  239 

Deakin,  Doe  d.  Lloyd  v.  .  .285 
Deardon  v.  Lord  Byron  .  .  352 
Denton,  Doe, d,  Stewart  v.  .  26 
Denn,d.Brunev.Rawlinsl07,110,124 

,  d.  Burghes  v.  Purvis      .     .  221 

,  d.  Goodwin  v.  Spray          .  287 

— ,  d.  Jacklin  v.Cartwright     .137 
,  d.  Lucas  v.  Fulford    .  .  354 


PAGE 
Denn,  d.  Wroot  v.  Fenn        .      .  272 

,  v.  White  .  .  390 

,  Far  v.  .  .  332,  333 

,  Benn,  d.  Mortimer  v.         .  359 

,  Fenn,  d.  Tyrrel  v.  .  241 

Dent,  Savage  v.  .  199,  205, 235 


Dence  v.  Doble 
Derby,  Cutting,  v. 
Derrett,  v.  Kemp 
Devereux  v.  Underbill 
Dillon  v.  Fraine 
Dinely,  Doe,  d.  Messiter  v. 
-,  Hand  v.  .''*• 


357 
.  383 
141, 142 
.  345 
.  87 
.  350 
.  366 

Dobbs  v.  Passer  .          .  252,  267 

Dobson,  Hobson,  d.  Bigland  v.    .  266 

Doble,  Dence  v.  .  .  357 

Dodwell  v.  Gibbs  .  .  390 

Doe  d.  Ambler  v.  Woodbridge    .  193 

,d.  Ash  v.Cal vert .  150,289,315 

,  d.  Aylesbury,  (Earl  of,)  v. 


Roe 

,  d.  Banning  v.  Griffin 
,  d.  Bass  v.  Roe          '* '-^'\ 
,  d.  Baddam  v.  Roe     . 
,  d.  Bailey  v.  Roe 
,  d.  Baker  v.  Woombwell 
,  d.  Barnett  v.  Keene 
,  d.  Barber  v.  Lawrence 
,  d.  Batten  v.Murless 
,  d.  Beaumont  v.  Armitage  . 
,  d.  Bedford  v.  Wheeler 
,  d.  (Duke    of,)  v, 


Kightley 


v.  Kendrick 


242 
284 
233 
236 
237 
315 
54 
192 
302 
227 
192 

135 

144 


d.    Bennington     v.    Hall 

65,213,299 
.  347 
.  232 
.  182 
276 
353 
302 
32 


,  d.  Beyer  v.  Roe 
,  d.  Bird  v.  Roe 
,  d.  Bish  v.  Keeling      . 
,  d.  Biddle  v.  Abrahams 
,  d.  Birch  v.  Phillips 
,  d.  Bland  v.  Smith 
,  d.  Blake  v.  Luxton 
,  d.  Boscawen  v.  Bliss  .  193 

,  d.  Bradshaw  v.  Plowman  .     25 
,  d.  Bradford  v.  Watkins  .  131, 
132,  148 

,  d. v.  (Earl  of,)  v. 

Roe       -..     !         .  .374 

,  d.  Bristow  v.  Pegge  .     33 

,  d v.  Old  .  197 

.  d.  Brierley  v.  Palmer  .  152 
,  d.  Bromfield  v.  Smith  116,125 
,  d.  Brown  v.  Wilkinson  140, 141 
,  d.  Bromley  v.  Roe  .  237 

,  d.  Bryan  v.  Banks  .  194,198 
,  d.  Brune  v.  Prideaux  .  110,  124 
,  d.  Bryant  v.  Wippel  .211 

,  d.  Burrell  v.  Perkins          .     98 

,  d. v.  Bellamy  .  64,  66, 

287 

,  d.  Burrow  v.  Reade  .     77 

,  d.  Burdett  v.  Wright          .     89 


TABLE    OF    CASES    CITED. 


XIX 


PAGE 

Doe,  d.  Buross  v.  Lucas  .  132 

,  d.  Byne  v.  Brewer  .  204,  274 
,  d.  Bywater  v.  Brandling  .  188 
,  d.  Campbell  v.  Scott  .  140 

,  d.  Calrert  v.  Frowd  .  125 

,  d.  Cardigan  (Earl  of,)  v.  Roe, 

374 
,   d.  Carlisle   (Earl  of,)  v. 

Woodman  .  .  131 

,  d.  Cartbew  v.  Brenton  358,  361 
,  d.  Castleton  v.  Samuel  143,  315 
,  d.  Gates  v.  Somerville  .  121 
,  d.  Cbadwick  v.  Law  .  355,  356 
,  d.  Challnor  v.  Davies  .  52 
,  d.  Chaplin  v.  Wbayman  .  127 
,  d.  Cheney  v.  Batten  .  150, 154, 
173,  380 

,  d.  Chere  v.  Smith  .191 

,  d.  Cheese  v.  Creed  .     70 

,  d.  Chippendale  v.  Dyson  .  316 


,  d.  Church  v.  Barclay 
,  d.  Clarke  v.  Roe 

,  d. v.  Grant 

,  d. v.  Spencer 

,  d. v.  Trapaud 


.  359 
.  231 
.  278 
67,68 
.  307 
.  314 
.  225 
.  52 
.  143 
.  115 
97,  392 


,  d.  Clarges  v.  Forster 
,  d.  Cobbey  v.  Roe 
,  d.  Colclough  v.  Mulliner 
,  d.  Collins  v.  Weller 
,  d.  Coore  v.  Clare 
,  d.  Compere  v.  Hicks 
,  d.  Cook  v.  Danvers    42, 50,  299 
,  d.  Cox  v.  .  .  135 

,  d.  Colclough  v.  Halse  .  49 
,  d.  Coleman  v.  Britain  .  68 
,  d.  Corbett  v.  Corbett  .  301 
,  d.  Cotterell  v.  Wylde  .  273 
,  d.  Courtall  v.  Thomas  .  91 
,  d.  Crisp  v.  Barber  .  .  32 
,  d.  Da  Costa  v.  Wharton  32,  61, 
65,  70,  110,301 
,  d.  Lord  Darlington  v.  Cock  235 

,  d.  • v.Bond  135 

,  d.  Dagget  v.  Snowdon  .  147 
,  d.  Davis  v.  Davis  .  .  98 

,  d. v.  Roe          .  .  323 

,   d.   Draper's   Company   v. 

Wilson  .  .  277,  331,341 
,  d.  Digby  v.  Steel  .  151, 300 
,d.  Dry  v.  Roe  .  .  239 

,  d.  Ducket  v.  Watts  .  95,  99 
,  d.  Durourev.  Jones  .  58 

,d.  Edwards  v.  Roe  .  244 

,  d.  Elwood  v.  Roe  .  .  237 
,  d.  Emmett  v.  Thome  .  302 
,  d.  Esdaile  v.  Mitchell  .  213 
,  d.  Evans  v.  Roe  .  .  172 
,  d.  Eyre  v.Lamhly  .  274 

,  d.  Feldon  v.  Roe  .  .  356 
,  d.  Fishar  v.  Prosser  .  55 

,d. v.Giles       .     60,108 

,  d.  Fenwick  v.  Roe  .  240 

,  d.  Field  v.  Roe          .          .  237 


PAGE 

Doe,  d.  Fleming  v.  Fleming         .  285 

,  d.  Foley  v.  Wilson     .    62, 107 

308 

,  d.  Folkes  v.  Clements  .  62 

,d.  Forster  v.  Wandlass  168,342 

,  d. v.Scott       .       .    50 

,  d. v.  Williams         .  279 

,  d.  Foxlow  v.  Jeffries  .  227 
,  d.  Freeman  v.Bateman  .  192 
,  d.  Gaskell  v.  Spry  .  182 

,  d.  George  v.  Jesson  .  58, 59,  285 
,  d.  Gibbons  v.  Pott  .  .  33 
,  d.  Gill  v.  Pearson  .  100,  210 
,  d.  Giles  v.  Warwick  .  277 
,  d.  Ginger  v.  Roe  .  .  263 
,  d.  Godsell  v.  Inglis  .  151 

,  d.  Goodbehere  v.  Bevan    180, 
181 

,  d.  Graham  v.  Scott  .  .  89 
,  d.  Green  v.  Baker  .  127, 128 
,  d.  Grubb  v.  Grubb  .  253 

,  d.  Grundy  v.  Clarke     .    34,  80 

d.  Grocers'  Company  v.  Roe 

252 

,  d.  Gunson  v.  Welsh  .  277 

,  d.  Hanley  v.  Wood  .     20 

,  d.  Hall  v.  Benson  .  136, 145 
,  d.  Halsey  v.  Roe  .  .  237 
,  d.  Hallen  v.  Ironmonger  .  83 
,  d.  Hammeck  v.  Fellis  .211 

d.  Hamilton   v.  Atherley  356, 
358 

,  d.  —  —  v.  Hatherley  355, 358 
,  d.  Hanson  v.  Smith  .  298 

,  d.  Hardman  v.  Pilkington 

225,  226 

,  d.  Harvey  v.  Roe  .  .  239 
,  d.  Harwood  v.  Lippencott  .  260 
,  d.  Hayne  v.Redfern  .  79 

,  d.  Harris  v.  Masters  .  162, 170 
,  d.  Harrop  v.  Green  .  280 

,  d.  Heapy  v.  Howard  .  149 

,  d.  Heblethwaite  v.  Roe  .  259 
,  d.  Hellings  v.  Bird  .  55 

,  d.  Hele  v.  Roe  .         .  240 

,  d.  Henniker  v.  Watt  .  188 

,  d.  Hinde  v.  Viuce  .  136, 146 
,  d.  Kindly  v.  Rickarby  .  3l8 
,  d.  Hitchings  v.  Lewis  172, 173 
,  d.  Hodson  v.  Staple  .  33, 89 
,  d.  Holcomb  v.  Johnson  .  145 
,  d.  Hollingsworth  v.  Stennett 

107,  122 

,  d.  Holland  v.  Worsley  .  178 
,  d.  Holmes  v.  Darby  .  155 

,  d.  Huddlestone  v.  Johnson  156 
,d.  Human  v.  Pettit  .  281 

,  d.  Jackson  v.  Wilkinson    .     53 

,  d. v.  Ramsbottom     276 

,  d.  James  v.  Harris         .  98,  220 

,d. v.  Brown         .      .302 

,  d. v.  'Stanton  .  277 

,  d.  Lord  Jersey  v.  Smith      .  162 


XX 


TABLE    OF    CASES    CITED. 


PAGE 

Doe,  d.  Jones  v.  Crouch      .        .  184 

,  d. v.  Roe         .          .  240 

,  d. v.  Wilde  .  279 

,  d.  Johnson  v.  Lord  Pem- 
broke .  .         .284 
,  d.  Kerby  v.  Carter 
,  d.  Knight  v.  Quigley 

,  d. v.  Rowe 

,  d. v.  Lady  Smith 


.  121 
107, 123 
.  196 
260 
26 
213 


,  d.  Lawrie  v.  Dyball 
,  d.  Lawrence  v.  Shawcross 
,  d.  Leeson  r.  Sayer  .  107, 123 
,  d.  Ledger  v.  Roe  .  .  252 
,  d.  Leicester  v.  Biggs  .  82,  86, 
120,  314 
,  d.  Leppingwell  v.  Trussell  339 


,  d.  Lewis  v.  Bingham 

,  d. v.  Roe 

,  d. v.  Coles 

,  d.  Ligberd  v.  Lawson 
,  d.Lintot  v.  Ford 
,  d.  Lloyd  v.  Deakin 
,  d. v.  Powell 


279 
.  232 
.  226 
.  98 
.  335 
.  285 
.  182 
.  181 
263,  273 
.  240 
.  276 
.  340 
.  210 


,  d.  Lock  wood  v.  Clarke 

,  d.  Lock  v.  Franklin    . 

,  d.  Lowe  v.  Roe         . 

,  d.  Lowdon  v.  Watson 

,  d.  Lucy  v.  Bennett 

,  d.Lulham  v.  Fenn 

,  d.  Macartney,  Lord,  v.  Crick 

131,  132 

,  d.  Martin  v.  Watts     .         .111 

,  d.Marsack  v.  Read  129, 210,  277 

,  d.  Mason  v. Mason      .        .  288 

,  d.  Matthewson  v.  Wright- 
man  .  133,134 

,  d.  Maldou,   Mayor  of,  v. 
Miller  .  .  217 

,  d.  M'  Dougall  v.  Roe          .  237 

,  d.  St  Margaret's  Hospital, 
Governors  of,  v.  Roe 

,  d.  Mayhew  v.  Erlam       t  .' 

,  d.  Messiter  v.  Dinely         . 

,  d.  Milner  v.  Brightwen 

,  d.  Milnes  v.  Lamb 

,  d.  Miller  v.  Noden     . 

,  d.  Mitchell  v.  Levi 

,  d.  Mitcbinson  v.  Carter 

,  d.  Morris  v.  Rosscr  . 

,  d.  Morgan  v.  Church 

,d. v.Bluck 

.  d. v.  Roe    , 


,  d.  Moore  v.  Lawder 
,  d.  Morecraft  v.  Meux 
,  d.  Morland  v.  Baylis  . 
,  d.  Morton  v.  Roe 
,  d.  Neale  v.  Roe 
,  d.  Nepean  v.  Budden 
,  d.  Netbercote  v.  Battle 
.  d.  Neville  v.  Dunbar 
,  d.  Newby  v.  Jackson 
,  d.  Northey  v.  Harvey  . 
,  d.  Nutt  Y.  Nutt 


229 
364 
350 
48 
316 
120 
130 
180 
92 
136 

34,81,341 
.  350 
.  123 
.  184 
.  236,  244 
.  271,  272 
239 
308 
300 
132 

107,  122 
283 
66 


PAGE 

Doe,  d.  Odiarne  v.  Whitehead  37,  96 
,  d.  Oldharo  v.  Wolley  284,  289 
,  d.  Oldershaw  v.  Breach  .  188 
,  d.  Osborue  v.  Spencer  .  98 
,  d.  O'Connell  v.  Porch  .  227 
,  d.  Palmer  v.  Andrews  .  69 
,  d.  Palmerston,  Lord,v.  Cope- 
land  .  .  .323 
,  d.  Parry  v.  Hodson  .  66 

,d. v.Hazell        .        .  140 

,  d.  Parker  v.  Boulton  .  121, 123 

,  d.Pate  v.  Roe 

,  d.  Paul  v.  Hurst 

,  d.  Peacock  v.  Raffan 

,  d.  Pearson  v.  Roe       . 

,  d.  Pemberton  v.  Roe 

,  d.  Phillips  v.  Butler 

,  d. v.  Roe 


345 
.  229 
.  144 

230,  260 
.  374 
.  142 
.  374 
.  359 
.  141 

179, 184 
.  183 

310,  316 
.  337 


,  d.  Pinckard  v.  Roe 
,  d.  Pitcher  v.  Donovan 
,  d.  Pitt  v.  Laming 
,  d.— —  v.  Sherwin 
,  d.  Powell  v.  King 
,  d.  Prior  v.  Salter 
,  d.  Pritchett  v.  Mitchell  128,  276 
,  d.  Puddicome  v.  Harris  .  315 
,  d.  Putland  v.  Hilder  .  70,  90, 
110 

,  d.  Quintin  v.  Roe       .          .244 

,  d.  Rees  v.  Thomas      .         .  360 

,  d.  Rigge  v.  Bell  107,  111,  144, 

178,305 

,  d.  Roby  v.  Maisey  .  .  60 
,  d.  Robinson  v.  Roe  .  145 

,  d.  Roddv.  Archer  .  .  136 
,  d.  Rumford  v.  Miller  .  227 

,  d.  Rust  v.  Roe          .  .  272 

,  d.  Lord  Say  &  Sole  v.  Guy  71 
,  d.  Sadler  v.  Driug  .  203 

,  d.  Sampson  v.  Roe  .  .  375 
,d.  Scales v.Bragg  •  .  279 
,  d.  Schofield  v.  Alexander  168 
,  d.  Scott  v.  Miller  .  .  192 
,  d.  Seabrooke  v.  Roe  .  172 

,  d.  Shepherd  v.  Allen     109, 1 96 

,  d. v.  Roe  .211 

,  d.  Selby  v.Alston  .  .355 
,  d.  Shore  v.  Porter  70,  125,  214 
,  d.  Simmons  v.  Roe  .  .  236 
,  d.  Smith  v.  Smith  .  .  299 
,  d.  Smelt  v.  Fuchau  .  317 

,  d.  Spencer  v.  Godwin         .  186 

,  d. v.  Clarke  .  366 

,  d.  Sore  v.  Ekins       .         .  195 

,  d.  Spicer  v.  Lea     134, 142,  143, 

145 

,  d.  Stewart  v.  Denton         .    26 

,  d.  Strickland  v.  Spence    .  1 46, 

147 

,  d.  Surtees  v.  Hall  .  51,98 
d.  Sutton  v.  Ridgway  .  360 
d.  Sykes  v.  Durnford  133, 312 
d.  Taggart  v.  Butcher  336,  347 


TABLE    OF    CASES    CITED. 


XXI 


Dot,  d.  Tarrant  v.  Hellier 


,  d.  Taylor  v.  Johnson 

,  d.  Thompson  v.  Clark 

,  d.  Thomas  v.  Roe  . 

,  d.  Tilt  v.  Stratton 

,  d.  Tilyard  v.  Cooper 

,  d.  Tindal  v.  Roe    . 

,  d.  Tomkins  v.  Willan 

,  d.  Toilet  v.  Sailer 

,  d.  Troughton  v.  Roe 

.d.Tubbv.  Roe 

,d,  Upton  v.  Witherwick     .347 

,  d.  Vernon  v.  Vernon       65,  208 

,  d.  Vickery  v.  Jackson         .  185 

,  d.Vinev.  Figgins      .         .  212 

,  d.Wadmore  v.  Selwyn       .  145 

,  d.  Watson  v.  Fletcher          .    81 

,d.  Walker  v.Stephenson  298, 3.55 

,  d. v.  Groves 


PAGE 

62,  08, 
286,  308 
.  174 
.     53 
.  232 
.      .  112 
.  260 
.  237 
.     87 
.  220 
252,  267 
.  363 


,  d.  Warry  v.  Miller 
,d.  Warner  v.  Browne 


118 
.     64 
106,  107. 
Ill,  122 

,d.  Webb  v.  Goundry  .349 

,d.  Whayman  v.  Chaplin  127, 128 
,d.Whatleyv.  Telling  .213 
,  d.Wheeldonv.  Paul  .161 

,  d.  Whitfield  v.  Roe  167,  244 
,d.  Williams  v.  Winch  .360 

,d. v.Pasquali          .125 

,  d. v.  Humphreys     .  151 

,  d.  Wilson  Y.Phillips  .  189 

,  d.  Wright  v.  Plumptree      .     99 

,  d. v.  Roe        .         .  242 

,  Davis,  d.  Povey  v.  .  252,  345 
,  Roed.Cholmondley  v.  .325 

, ,  d.  Cook  v.     .  .  266 

, ,  d.  Durant  v.         .      .  375 

, ,d.  Hambrook  v.    237,  244 


,         ,  d.  Humphries  v. 

, ,  d.  Hyde  v. 

,          ,  d.Leak  v. 

, ,  d.  Stephenson  v. 

,  Tupper,  d.  Mercer  v. 

v.  Badtitle 

v.  Davies 

v.  Greaves 

v.  Law 

v.  Payne 

v.  Reynolds 

v.  Roe 

v.  Spiller. 

v.  Stradling 

Donovan,  Doe,  d.  Pitcher  v. 
Donford  v.  Ellis 


347 
268 
258 
224 
237 
245 

336,385,391,  393 
207,  232 
.  360 
.  318 
.  351 

229,  237,  240,  245 
.  133 
.   .  277 
141 
381 


Dormer  v.  Fortescue  .       .  392 

Dose,  Lushington,  d.  Godfrey  v.  349 
Douglas  v.  Shank  .  .  222 

v .  .      .  239 

Downingham's  case  .  .  63 
Dowsing,  A nsty  v.  .  .295 
Driver,  d.  Scrutton  v.  Scrutton  .  226 
,d.  Oxendon  v.  Lawrence  258,276 


PAGE 

Dring,  Doe,  d.  Sadler  v.  .  .  203 
Driukwater,  Gulliver  v.  336,  385 
Drury  v.  Fitch  .  .  91 

Duckworth,  d.  Trebly  v.  Tunstall  171 
Dumpor's  case  .  .  .  189 

v.  Syms  .  .  190 

Dunch,  Sprightley,  d.  Collins  v.  239 
Durant,  Potts  v.  .  304 
Durdant,  Burchett  v.  .  .  82 
Dunbar,  Doe,  d.  Neville  v.  .  132 
Dunk  v.  Hunter  .  .  116 
Dutton,  Cotterill  v.  .  .58 
Durnford,  Doe,  d.  Sykes  v.  133,  312 
Dyball,  Doe,  d.  Laurie  v.  .  26 
Dyson,  Doe,  d.  Chippendale  v.  .  316 
,  Jeffries  v.  .  382,  388 


E. 


Eades,  Patterson  d.  Gradridge  v.  203 
Earl  v.  Lewis       .  .  .  304 

,  d.  Godwin  v.Baxter     .     .318 

Eaton,  Brewer  d.  Lord  Onslow  v.  174 


Eastcourt  v.  Weeks 
Eccleston  v.  Petty 

-,  Royston  v. 


63 
.  .  294 

23,  27,  28 

.  .  299 
.  178 

.  .  107 
.  195 
.  366 
.  63 
.  98 

.  .381 
.  228 


Edmunds,  Nash  v. 
Edwards,  Palmer  v. 
Egan  v.  Johnson 
Ekins,  Doe  d.  Sore  v. 
Elden  v.  Keddell 
Eliot,  Stephens  v. 
Elliot,  Roe  d.  Truscott  v. 
Ellis,  Donford  v. 

,  Roe,  d.  Lee  v.        . 

v.  Smith          .  .291,  292 

England,  d.  Syburn  v.  Slade  89,  276 
Erith,  Inhabitants  of,  Rex  v.  .  284 
Eriswell,  Inhabitants  of,  Rex  r. 

284,  303 

Erlam,  Doe  d.  Mayhew  v.  .  364 

Evans,  v.  Croker  .  .  223 

Evans,  Smith  v.  .          291 

Evelyn,  Stonehouse  v.    .  .  291 

Eves,  Rumney  v.  ...  286 

Eyre,  Longford  v.  .  .  293 


F. 


Fabrigas,  Mostyn  v.  .  •  209 
Fagg  v.  Roberts  .  .  .  323 
Fairclaim,  d.  Fowler  v.  Sham- 
title  .  14,  54,  55,  257,  259,  261 
,  d.  Empson  v.  Shackle- 
ton  .  .  53,54 
Farmer,  d.  Miles  v.  Thrustout  .  239 
Far  v.  Denn  .  .  332,  333 
Farr,  Rede  v.  .  .  198 
Fawson,  Goodright,  d.  Griffen  r.  219 
Fawcctt,  Longcbamps  v.  .  .  280 
Felton  v.  Ash  .  .>:  .  365 


XXII 


TABLE    OF    CASES    CITED. 


PAGE 

Fenn,  d.  Blanchard  v.  Wood  .  276 

d.  Buckle  v.  Roe         .  .  239 

d.  Knight  v.  Dean     .  .  239 

d.Matthewsv.  Smart  98,190 


d.  Pewtress  v.  Granger 
d.  Thomas  v.  Griffith 
d.  Tyrrell  v.  Denn     . 
d.  Wright  v.  Johnson 
Denn,  d.  Wroot  v. 
Doe,  d.  Lulham  v. 
Fenwick's  case 

v.  Grosvenor 


261, 


281 
311 
241 
288 
272 
210 
261 
361 
211 

57 
212 

51 
281 


Fellis,  Doe  d.  Hammeck  v. 

Ferrars,  Roe  d.  Pellat  v.     . 

Figgins,  Doe  d.  Vine  v. 

Fineux,  Hatcher  v. 

Finch,  Ivatt  v. 

Fish,  Longchamp d.Goodfellow v.  291 

Fisher  v.  Hughes  .  .  329 

,  Kildarev.         .  .     25 

Fitchet  v.  Adams  .  .  100 

pitch,  Drury  v.         .  .     91 

Fitzgerald  v.  Marshall      .          27,  28 
Fleetwood,  Thornby  d.  Hamilton 


Fletcher,  Doe  d.  Watson  v. 
Fleming,  Doe  d.  Fleming  v. 
Flood,  Goodright  d.  Welsh  v 
Floyd,  Badger  v.  . 
v.  Bethill 


Focus  v.  Salisbury     .  . 

Folkard  v.  Hemet 
Foot,  Thrustout  d.  Wilson  v. 
Ford  v.  Lerke 

v.  Gray 

Doe,  d.  Lintot  v.     . 

Foster,  Miller  v.        .  .      . 

Forrester, Goodright, d.  Fowlerv. 
Forse,  Zoncb,  d.  Forse  v.     . 
Forster,  Doed.  Clarges  v.  '. 

Fortescue,  Dormer  v.        .  • 

Fortune  v.  Johnson        .  . 

Foreman,  Allen  v.     . 
Foster  v.  Pitfall 
Fothergill,  Crocker  v 
Fox  v.  Swan 
— — ,  Mason  v. 
Fraine,  Dillon  v.  .  .    87 

Franklin,  Doe,  d.  Lock  v.  .  .262 
Frazer,  M'Kenire  v.  .  .  289 

Freeman,  Holdfast  v.  .        .  230 

Friend,  Bouchier  v.          .  .  250 

Fryett,  d.  Harris  v.  Jeffries  .  194 
Frowd,  Doe  d.  Calvert  v.  .  125 

Fry,  Thorpe  v.  .         389 

,  Barefoot  v.  .  .  352 

Fuchau,  Doe,  d.  Smelt  v.  .  .317 
Fulford,  Denn,  d.  Lucas  v.  .  354 
Fulgam,  Molineaux  v.  .  .  345 
Furley,  d.  Canterbury,  Mayor  of, 

v.  Wood        .       136,145,216,217 
Fursden,  Moore  v.  .       210,  230 


338 
.     81 
.  285 
.     25 
.  351 
.  343 
.  101 
.  298 
.  335 
.     27 
54,98 
.  335 
304 
97 
71 
314 
392 
.  345 
.203 
39,40 
.       .     20 
177,  192,  280 


G. 

Gallimore,  Moss  v.         .  ,    •,       .60 
Galliers,  Roe,  d.  Hunter  v.    159,  180 


Gardiner  v.  Norman 
Garrett  v.  Lister 
Gascoigne,  Hodgson  v.     . 
George,  d.  Bradley  v.  Wisdom 
Gibson,  Wither  v.       .          . 

,  Alexander  v.       '  . 

-,  Woodcock  v.    ...  • 


201 
306 
347 
348 
158 
.  298 
.  80 
.  390 
.  27 
60,  108 
.  384 
.  293 
.  77 
.  304 
.  186 


Gibbs,  Dodwell  v. 
Giles,  Hill  v. 

,  Doe  d.  Fisher  v. 

Girdlestone  v.  Porter 

Glascock,  Shires  v. 

Glover  v.  Cope 

Glynn  v.  Bank  of  England 

Godwin,  Doe,  d.  Spencer  v. 

Goodright,  d.  Balsh  v.  Rich        .  276 

,  d  Charter  v.  Cordwent 

150,  174 

,  d.  Fowler  v.  Forrester     97 

,  d.  Griffin  v.  Fawson  .  219 

,  d.  Hare  v.    Cator   60,   93, 

95,  102,  158 

,  d.  Jones  v.  Thrustout 

236.  355 

,  d.  Peters  v.  Vivian         182 

,  d.  Rowell  v.  Vice  334 

,  d.  Russell  v.  Noright,  252 

,  d.  Smallwood  v.  Stro- 

ther  .  .  30,  216 


— ,  d.  Stevenson    v.    No- 


right 


-,  d.  Stevens  v.  Moss 
— ,  d.  Ward  v.  Badtitle 
— ,  d.  Walter  v.  Davids 
— ,  d.  Welsh  v.  Flood 

—  v.  Hart 

—  v.  Holton 

—  v.  Moore 

—  v.  Wood 
— ,  Moore  v. 


170 
283 
273 
192 
25 

255,257,  345 
335 
366 
325 
204 


Goodtitle,  d.  Brembridge  v.  Wal- 
ter .  218,  220 

d.  Chester  v.  Alker  21 ,     30 

— — • ,  d.  Estwick  v.  Way  80, 1 12, 

114 

,  d.Gallaway  v.  Herbert  107, 

122,  212 

,  d.  Gardner  v.  Badtitle  269 

,  d.  Jones  v.  Jones      32,  89 

,  d.  King  v.  Woodward  126 

,  d.  Luxmore  v.  Saville  186 

,  d.  Norris  v.  Morgan    .     61 

,  d.  Norfolk, Duke  of,  v. 

Notitle          .  .  .  233 

,  d.  Parker  v.  Baldwin     78 

,  d.Pinsentv.Lammiman  220 

,  d.  Price  v.  Badtitle     .  207 

,  d.  Ranger  v.  Roe        .  207 

,  d.  Read  v.  Badtitle     .  236 


TABLE    OF    CASES    CITED. 


\X111 


•  PAGE 

Goodtitle,  d.  Revett  v.  Brabam    .  288 

,  d.  Roberts  v.  Badtitle  238 

,  d.  Sandys  v.   Badtitle  246 

,  d.  Taysum  v.  Pope     .  364 

,  d.  Wanklen  v.  Badtitle  243 

,  d.  Wright  v.  Otway    .     26 

v.  Badtitle  .         .  268 

v.  Davis  .  .  245 

v.  Holdfast  .       .170 

v.  North         .         380,  387 

v.  Tombs  .     383,  391 


r.  Walton 


— • — ,  Bennington  v. 
-,  Thomas  T. 


Goodwin  v.  Longhurst 

• v.  Blackman 


25 
.  24, 25 
.  350 
63,  65,  66 
219,  221 
.   .  223 
222,  223 
289 


Goodgaine  v.  Wakefield 
Goose,  Adams  v. 
Gougb,  d.  Calthorpe  v.  Gough 
Gowthwaite,  Hassell,  d.  Hodsgon 

v.      .  .  .         72,  191 

Goundry,  Doe  d.  Webb  T.  .  349 

Gray,  Ford  v.  .54,  98 

,  Thrustout,  d.  Turner  v.    226, 

320,  354 

Grant,  Doe,  d.  Clarke  v.  .  .  278 
Gray  son  v.Atkinson  .  .  292 

Gravenor  v.  Woodbouse  .  .  276 
Granger,  Doe,  d.  Pewtress  v.  .  281 
Greenley's  case  .  "  .  '  .39 
Green  v.  Proude  .  /*  .  99 

G  reen's  case         .  .  .  173 

Gregory  v.  Henderson  .       .    85 

Gregg,  Bingbam,  d.  Lane  v.  .  365 
Greensmith,  Harding,  d.  Baker  v.  245 
Gree  v.  Rolle  .  51,  100,  333 

Greaves,  Doe  v.  .          207,  232 

Green,  Doe  d.  Harrop  v.  .  .  280 
Griffith,  Fenn,  d.  Thomas  v.  .311 
Griffin,  Carlton,  d.  Griffin  v.  .  293 

,  Doe,  d.  Banning  v.         .  284 

Grimstone,    d.  Lord  Govrer,   v. 

Burghers  .  .       .  264 

Grix,  Addy  v.  .  290,  293 


Grills,  Hussey  v. 
Groves,  Doe,  d.  Walker,  v. 
Grosvenor,  Fenwick  v. 
Grubb,  Doe,  d.  Grubb  v. 
Grumble  v.  Bodilly 
Grylev.  Gryle     . 
Gulliver  v.  Wagstaff 
v.  Drinkwater     . 


289 
.  118 
261,  361 
.  253 
.       .  361 
.  292 
.       .  243 
336,  385 

Guy,  Doe,  d.  Lord  Say  and  Sele  v.     71 
v.  Rand  .       .  221 


H. 

Haddock's  case  .  ' .  .323 
Halsal  v.  Wedgwood  .  .  239 
Hall,  Keecb,  d.Warnev.  33,  61,  109, 
307,  384 
,  Doe,  d.  Surtees  v.  .  51,  98 


PAGE 

Hall,  Doe,  d.  Bennington  r.  65,  213, 

299 

v.  Hughs     .  .  .203 

Halse,  Doe,  d.  Colclough  v.         .    49 
Hamond  v.  Ireland          .  .     27 

v.  Savel        .  .       .     27 

Hammond  v.  Wood         .         69,  301 
Hancock  v.  Price      .  .       .     25 

Hand  v.  Dinely  .  •  366 

Hands  v.  James          .  294,  298 

Harpur'scase  .  .       10,29 

Harvey.  Roe,  d.  Haldane  v.         .     32 

— ,  Metcalf  v.  .  .  392 

Harrison,  Roe,  d.  Gregson  v.  178, 190, 
191,  196 

v.  Harrison 

v.  Blades 


Harper,  Worrall  v. 
-,  Jordan  v. 


290,  293 
.  284 
.  29 
,   .  339 
346,  351 
.  345 
.  381 


Harris,  Withers  v. 

,  Rexv. 

• —  v.  Allen 

,  Doe,  d.  Puddicombe  v.  315 

Harding,  d.  Baker  v.  Greensmith  245 
Hart,  Goodright  v.          255,  257,  345 
Harbert,  Tredway  v. 
Harwood,  Bell  v. 
Harton  v.  Harton 
Harrington  v.  Wise 
Harris,  Doe,  d.  James  v 
-,  Rolfe  v. 


355,  356 
.  280 
.  83 
.  113 
98,  220 

,  .  183 
.  283 
.  114 
.  285 


Harvey,  Doe,  d.  Northey  v 

Hartley,  Philips  v. 

Hasland,  Roe  v. 

Hassell,  d.  Hodson  v.  Gowthwaite  72, 

191 

Hatfield  v.  Thorpe  .       .  296 

Hatcher  v.  Fineux  *  ,.         •    51 

Hatton,  Atkins  v.      .  .       .304 

Hatherley,  Doe,  d.  Hamilton  v.  356, 

358 

Hawkins,  Moore  v.  .  . 

-,  Chater  v. 


274 
295 
228 
130 
140 


Haydon,  d.  Carrol,  Vicars  v. 
Hayley,  Roe,  d.  Bamford  v. 
Hazell,  Doe,  d.  Parry  v. 
Hazlewood,  d.  Price  v.  Thatcher  233 
Heaton,  Little  v.  .  .158 

Heatherly,    d.    Worthington    v. 

Weston  .  .       .  210 

Heath,  Short  v.  .  393 

Hegan  v.  Johnson         .  107,  122 

Hellier,  Doe,  d.  Tarrant  v.  62,  63, 286, 

308 

Hems  v.  Stroud  .  29,  304 

Hemet,  Folkard  v.  .  .  298 

Hengest,  Jones,  d.  Thomas  v.  .  324 
Henden,  Smartley  v.  .  .  202 

Henderson,  Gregory  v.  .  .  85 
Hersey,  Roe,  d.  Wrangham  v.  .213 
Herbert  v.  Laugblyn  .  .  20 

,  Goodtitle,  d.  Galloway 

T.          .         107, 122,  212 
Hicks,  Roe,  d.  Jeffreys  r.  64, 298,  308 


XXIV 


TABLE    OF    CASES    CITED. 


PAGE 

Hicks,  Doe,  d.  Compere  v.  97,  3D2 
Highamv.  Cooke  .  .  223 

Higgins  v.  Highfield  .      .  385 

Higham  v.  Ridgway        .  .  283 

Highmore  v.  Barlow  .       .  203 

Hill  v.Giles         .  .  .27 

Milliard  v.  Jennings  .       .  295 

Hillingsworth  v.  Brewster  19,  261 
Hind,  Seers  v.  .  190,  191 

Hindson  v.  Kersey  .  .  297 

Hilder,  Doe,  d.  Putlandv.  70,  90,  110 
Hubson,  d.  Bigland  v.  Dobson  .  266 
Hockead,  Plomer  v.  .  .201 

Hodgson,  Doe  d.  Parry  v.  .     66 

v.  Gascoigne  .       .  347 

,  Mason  d.  Kendall  v.  252,  268 

Hodson  v.  Sharpe  .  .  276 

Hodges,  Wilson  v.  282 

Hoel,  Joans  v.  .  .28 

Holdfast,  Goodtitle  v.  .      .  170 

Holton,  Goodright  v.       .  .  335 

Holdmyfast,  Newman  v.  19,  130 

Holford,  Lade  v.        .  .       .     33 

Holmes,  Poultney  v.       .  .  178 

,  Young  v.  .     71 

,  d.  Brown  v.  Brown          .  326 

Holdfast,  d.  Hattersley  v.  Jackson  355 

• — ,  d.  Woollams  v.  Clapham 

65,  286 

,  Thrustout,  d.  Williams 

v.         .         .        356,  357 

v.  Freeman  .      .  230 

v.  Morris  .  .  388 

Hooper  v.  Dale          .  .      .  204 

Hood  Austine  v.  .  .  355 

Hopkin's  case  .  .      .201 

Horde,  Taylor,  d.  Atkins  v.  41,  327, 

329 

Horsfall,  Calvert  v.          .  .  389 

Howard  v.  Bartlett 

v.  Wemsley 

,  Doe,  d.  Heapy  v. 


How,  Lucas  v. 
Houston  v.  Hughes 
Howard,  Bishop  v. 
Hudlestone,  Johnson  v. 
Hudson,  Hunt  v. 
Hughs,  Hall  v. 
Hughes,  Birkbeck  v. 

— ,  Fisher  v. 

,  Houston  v.          .  .    „. 

Humphreys,  Doe,  d.  Williams  v.  151 
Hunt  v.  Bourne  .  97,  98 

v.  Hudson  .  .  381 

Hunter  v.  Britts        .  .  390 

,  Dunk  v.  .  .  H6 

Hurst.  Doe,  d.  Paul  v.  .       .  229 

Husseyv.  Grills  .  .  289 

Hutchinson  v.  Puller  .       .     27 

Hyde,  d.  Culliford  v.  Thrustout  .  25;.' 


.  .  66 
.  139 
.  149 

,  .  76 
.  87 

.   .  110 

137,  156 
.  381 
.  203 
.  245 
.  329 
87 


I. 
Inglis.  Doe,  d.  Godsell  v. 


.  151 


PAGE 

Ireland,  Hammond  v.  .    27 

Roe,  d.  Johnson  v.  .  309 

Ironmonger,  Doe  d.  Hallen  v.  .     83 

Ivatt  v.  Finch  .  .  281 

Ives,  Townsend  v.  .  .  297 


J. 


Jackson,  Odingsall  v.  .29 

,  Doe,  d.  Newby  v.  .  107 

,  Doe,  d.  Vickery  v.          .  185 

,  Roe,  d.  Matthews  v.        .  134 

— ,  Holdfast,  d.  Hattersley  v.  355 

— ,  Trymner  v.         .  .  291 

James,  Hands  v.  .        294,  298 

Jeffries,  Fryett,  d.  Harris  v.         .194 

,  Doe,  d.  Foxlow  v.  .  227 

v.  Dyson  .          382,  388 

Jefts,  Taylor  v.         .  .         235 

Jemott  v.  Cow  ley  .  .    71 

Jenkins,  d.  Harris  v.  Pritchard  95, 281 
Jennings,  Hilliard  v.  .  .  295 
Jenny,  d.  Preston  v.  Cutts  236,  244, 

246 

Jesson,  Doe,  d.  George  v.  58,  59,  285 
Joans  v.  Hoel  .  .  28 
Johnson,  Doe,  d.  Holcombe  v.  .  145 
,  Doe  d.  Huddlestone  v.  137, 


-,  Doe,  d.  Taylor  v. 
-,  Fenn,  d.  Wright  v. 
-,  Rich,  d.  Cullen  v. 
-,  Egan  v. 
-,  Fortune  v.       . 
-,  Hegan  v.  . 

-,  Proctor  v.    . 
-  v.  Hudddleston 
-,  Lawson  v.  . 


156 
.  174 
.  288 
.  309 
.  98 
,   .  345 
107,  122 
.  346 
137,  156 
.  284 
.  198 
.  298 
82,  83 


Johns  v.  Whitley 

Joliffe,  Lowe  v. 

Jones  v.  Lord  Say  and  Sele 

,  d.  Griffiths  v.  Marsh  132, 199, 

205 

,  Doe,  d.  Duroure  v. 

,  Goodtitle,  d.  Jones  v. 

,  d.  Thomas  v.  Hengest 

v.  Thorn      . 

v.  Tatham 

Jordan  v.  Harper  . 
v.  Cleabourne 


Jourdain  v.  Wilson 
Jory  v.  Orchard 
Jurdan  v.  Stone 
Juner,  Boner  v. 
Judson,  Pinero  v. 


.  58 
33,89 
.  324 
.  183 
.  173 
.  339 
.  28 
.  74 
.  313 
.  66 
.  210 
.  119 


Keane,  d.  Byron  v.  Deardon  51,  83, 

89,  349,  350 

Keddell,  Elden  v.         -  .-    •        .  306 


TABLE    OP    CASES    CITED. 


XXV 


PAGE 

Keech,  d.  Warne  v.  Hall  33,  61, 109, 
307,384 

Keeling,  Doe,  d.  Bish  v.  .  182 

Keen,  Doe,  d.  Barnett  v.  .    54 

,  Williams,  d.  Johnson  v.     .  $71 

,  d.  Angel  v.  Angel    .    356,  357 

Kemp  v.  Derrett  .  127,  141,  142 
Kenrick  r.  Beauclerk  .  83, 86 
Kendrick,  Doe,  d.  Bedford  v.  .  144 
Kersey,  Hinsdon  v.  v  »  .  297 
Kesworth  v.Thomas  .  .  226 

Knightley,  Doe,  d.  Duke  of  Bed- 
ford v.  ...  135 
Kildare  v.  Fisher       .  ll    •  : :"'.      .    25 
Kineto,  Comyn  v.        '  •  "i.  .20 
King,  Cottingham  v.        .      .  24,  219 

,  Doe,  d.  Powell  v.        .  310,  316 

,  Short,  d.  Elmes  v.      .         .  239 

,  Short  v.         .  .    356,  359 

v.  Bery     .         .  .       .  209 

,  Watson  v.  .  .  285 

Kingsdale  v.  Man     .  .  343,  345 

Kinaston  v.  Clarke  .  .  305 

Kirkman  v.  Thomson  «'     .    40 

Knight  v.  Sims        .  .28 

,  d.  Phi  Hips  v.  Smith         .     85 

Knipe  v.  Palmer  .  •  •  .  91 
Kynaston  v.  Lloyd  .  .  39 


Lackland,  d.  Dowling  v.  Badtitle  232 
Lade  v.  Holford          .  .      .    33 

Lambley,  Doe,  d.  Eyre  v.  .  314 

Lamb  v.  Archer      .  .       .  257 

,  Doe  d.  Milnes  v.     .  .316 

Laming,  Doe,  d.  Pitt  v.  .  179, 184 
Lammiman,  Qoodtitle,  d.  Pin- 
sent  v.  ...  220 
Langley,  Broughton  v.  .  .  82 
Lansdowne(Lord)  Penphrasev.  292 
Laughlyn,  Herbert  v.  .  .20 
Lawrence,  Driver,  d.  Oxendon  v. 

258,  276 
Law  v.  Wall  is 

,  Doe,  d.  Cbadwick  v. 

,  Doe  v. 

Lawder,  Doe,  d.  Knight  v. 
Lawson,  Doe,  d.  Ligberd  v. 
,  Johnson  v. 


.  324 
355,  356 
.  360 
.     .  123 
.     98 
.  284 
.   192 


Lawrence,  Doe,  d.  Barber  v. 
Lea,  Doe,  d.  Spicer  v.   134, 142, 143, 

145 
Lee  v.  Libb  .  .      291,  292 

—  v.  Norris   .  .  .     .     79 

—  v.  Rowkeley  .        .  ,  .  334 
— ,  Rigley  v.               .            .     .  334 
Lees,  Roe,  d.  Bree  v.        .  .138 
Leeds  (Duke  of)  Pugh  v.       .      .  223 
Legg,  d.  Scot  v.  Benion      .     13O,  132 
Leigh  ton  v.  Leighton       .             .  352 


PAGE 

Lengridge,  Richardson  v.  .  .  106 
Lerke,  Ford  v.  .  .  .27 

Levi,  Doe,  d.  Mitchell  v.  .  .  130 
Lewis,  Earl  v.  ,  .  .  304 

,  Doe,  d.  Hitchings  v.     172,  173 

Leymayne  v.  Stanley  .  .  .  290 
Libb,  Lea  v.  .  .  291,292 

Limbert,  Lindsay  v.     .  .     .     69 

Lindsay  v.  Limbert  .  .  .69 
Linsey  v.  Clerk  '**''  .  .331 
Lincoln  College  case  .  .  40 

Lippencott,  Doe  d.  Harwood  v.  260 
Lister,  Garrett  v.  -.  .  .  306 

Little  v.  Heaton     .          •»'  .  158 

Littler,  Clymer  v.      .  .      .  327 

Llewelyn  v.  Williams      .  .  223 

Llingon,  Chamier  v.  .  .         383 

Lloyd  v.  Peel       .  .  .387 

,  Kynaston  v.  .    39 

London  (Bishop  of)  Rex.  v.  .  19 
Longchampd.Goodfellow  v.  Fish  291 
Longhurst,  Goodwin  v.  .  63,  65,  66 


210 
.  293 
.  280 
.  282 
.  345 
64,309 
Lovelock,  d.  Norris  v.    Dancas- 

ter  •  .        259, 260 


Lonsdale,  Roe,  d.  Raper  v. 
Longford  v.  Eyre 
Longcbamps  v.  Fawcett   . 
Lord,  Roe,  d.  Thorne  v. 
Loveless  v.  Ratcliff 

•,  Roe,  d.  Cosh  r. 


Lowe,  Rowe,  d.  Ebrall  v. 
v.  Joliffe 


Lowthal  v.  Tomkins 
Lucas  v.  How 

,  Doe.d.  Buross  v. 

Luffe,  Rex  v. 

Lushington,  d.  Godfrey  v.  Dose 
Luttrell,  Pollard  v. 
Luxton,  Doe,  d.  Blake  v. 


88 
298 

69 

76 
132 
284 
349 
100 

32 


M. 

Maberly,  Thompson  v.  .     .137 

Machel  v.  Temple  .  .  .294 
Macdunoch  r.  Stafford  .  .  23,  25 
Mackinder,  Pendock,  d.  Mackiu- 

der  v.       .          .  .  294 

M'Kensie  v.  Fraser  .  .  .  289 
Madden,  d.  Baker  v.  White  67,  1'26 
Maddox,  Orrell  v.  .  .  .311 

Maisey,  Doe,  d.  Roby  v.  .     .     60 

Maldon's  case         .       '    •  .  113 

Mantle  v.  Wellington  .        .  210 

Man,  Winkworth  v.  .         .          .  221 

,  Kingsdale  v.       .         .  343,  345 

Manning,  Parker  v.          .  .  276 

Martyn  v.  Nichols     .  .     28 

Marsh,  Jones,  d.  Griffiths  v.    132,  199, 

205 

Marshall,  Fitzgerald  v.  .  27,  28 
Martin  v.  Davis  .  .  .  261 


XXVI 


TABLE  OF  CASES  CITED. 


PAGE 

Massey  v.  Rice         .  .         .     28 

Mason,  Doe  d.  Mason  v.         .       .  288 

•,  d.  Kendale  v.  Hodgson  252, 

268 

v.  Fox  •  .  328 

Masters,  Doe,  d.  Harris  v.  162,  170 
May  v.  May  ...  .  .  283 

Maynard,  Rawson  v.         .  .27 

Medlicott  v.  Brewster  .      .  264 

Mellish,  Sturt  v.      .  .    58 

,  Baker  v.          .      88,276,310 

Merlott,  Tapner  d.  Peckham  v.  95,  99 
Merrell  v.  Smith  .  .  .  225 

Methold  v.  Noright  .      .  243 

Metcalf  v.  Harvey  .  .  392 

Messenger  v.  Armstrong  .  .  151 
Meux,  Doe,  d.  Morecraft  v.  .  184 
Miller,  Doe  d.  Warryv.  .-  .  64 

,  Doe,  d.  Rumford  v.      .     .  227 

Doe,   d.   Maldon   (Mayor 


of)  v. 

,  Doe,  d.  Scott  v. 

,v.  Foster 

Milburn,  Powell  v.  . 

Millener  v.  Robinson  . 
Minshull,  Roe,  d.  Crompton 

Mitchell,  Doe,  d.  Esdaile  v. 
,  Doe,  d.  Pritchett 

Moggridge  v.  Davis 
Molineux  v.  Molineux 

—  v.  Fulgan 

Moody,  Tenny,  d.  Gibbs  v. 
Moore  v.  Fursden 

v.  Hawkins 

,  Goodright  v. 

v.  Goodright 


Morgan,  Goodtitle,  d.  Norris  v. 

,  d.  Dowding  v.  Bissell 

Morres  v.  Barry       .        , 
Morris  v.  Barry   . 

,  Holdfast  v. 

Morgan  v.  Stapely      . 
Morewood,  Outram  v. 
Moss  v.  Gallimore 
Mostyn  v.  Fabrigas 
Moss,  Goodright,  d.  Stephens  v. 
Mulliner,  Doe,  d.  Colclough  v. 
Murtbwaite  v.  Barnard 
Murless,  Doe,  d.  Batten  v.  . 
Musgrave,  d.  Hilton  v.  Shelley 

N. 


Nash  v.  Edmunds  .  .  299 
Neale,  Smalley  v.  .  .  239 
Negative  d.  Parsons  v.  Positive  248 
Neving,  Soulby  v.  .  .  154 
Newman  v.  Holdmyfast  .  19,330 
,  Shirlyv.  .  .  .  141 


217 
192 
304 
303 
210 
154, 
174 
213 
128, 
276 
.  388 
.   .  20 
.  345 
82,317 
.  210,  330 
.  274 
.  366 
204 
61 
117 
328 
210 
388 
338 
281 
60 
209 
283 
52 
87 
302 
96 


PAGE 
Newton,  Waddy  v.      .         .         .20 

Nichols,  Martin  v 28 

Noden,  Doe,  d.  Miller  v.  .  .  120 
Noke  v.  Windham  .  67,  218,  354 
Nokes,  Awder  v.  .  .76 

Noright,   Goodright,    d.  Steven- 
son v.  .  .  170 
-,  d  Russell  v.    252 


-,  Methold  v. 


Norris,  Lee  v. 
Norman,  Gardiner  v. 
North,  Goodtitle  v. 
Nowell  v.  Roake 
Notitle,    Goodtitle,    d. 

(Duke  of)  v. 
Nutt,  Doe,  d.  Nutt  v. 


243 
.     79 
.       .  201 
380,  387 
.  391 
Norfolk 

.     .  233 
.     66 


O. 

Oakapple,  d.  Green  v.  Copous     .  314 
Gates  d.  Wigfall  v.  Brydon  33,  95, 

263 

Odingsall  v.  Jackson        .  .     29 

Ogle  v.  Cook     .         .        <S  \  .    .  297 
Old,  Doe,  d.  Bristow  v.     .  .197 

Old  Arlesford,  Rex  v.  .      .     20 

Omichund  v.  Barker         .  .  295 

Orchard,  Jory  v.  ...  313 

Orrell  v.  Maddox  .         .     .  311 

Osbourne  v.  Rider  .  .  223 

Otway,  Goodtitle,  d.  Wright  v.        26 

,  Sir  John,  Addison  v.       .  204 

Outram  v.  Morewood       .  .281 

Ougly,  Peate  v.  .         291 


P. 

Paine,  Roe,  d.  Goatly  v.  .  .  184 
Painter,  Sturgeon  v.  .  .114 

Palmer's  case  .  .     .     28 

Palmer,  Knipe  v.  .  .91 

,  Pig-gott  v.     .  .  40 

v.  Edwards  .  .  178 

Palmer,  Doe,  d.  Brierly  v.  .  .  152 
Partridge  v.  Ball  .  60,  216,  217 
Parkin,  Aislin  v.  212,  382,  388,  S89 

,  Astlin  v.  .     .  389 

Parker,  d.  Walker  v.  Constable  106, 

125 

v.  Manning  .  .  276 

Roe  d.  Beebee  v.         .       .  287 

Parkhurst,  Berington  d.  Dormer 

v.  .  .    95,  102, 214 

Parsons,  Zouch,  d.  Abbott  v.         .     67 

, v.      ...  218 

v.  Lord  Ranclifie  .  289 

Pasquali,  Doe,  d.  Williams  v.  .  125 
Passer,  Dobbs  v.  ,  .  252,  267 


TABLE    OF    CASES    CITED. 


XX.V11 


PAGE 

Patterson  d.  Gradridge  v.  Eades  203 
Pattison,  Mayor  of  Congleton  v.  74 
Paul,  Doe,  d.  Wheeldon  v.  .  .  161 
Payne,  Doe  v.  .  .318 

,  Wood  v.  .   25,  330 

Payne's  case  .  .  .79 
Paw  let,  Croft  v.  .  .  294,  298 
Pearson,  Doe,  d.  Gill  v.  .100,210 
Peaceable,  d.  Hornblower  v.  Read 
56,  98,  99 
v.  Troublesome  . 


233 
.  291 
80,  276 
.  387 
.  33 
22,28 


Peate  v.  Ougly 

Pearce,  Phillips  v.    . 

Peell,  Lloyd  v.     . 

Pegge,  Doe,  d.  Bristow-.v. 

Pemble  v.  Sterne 

Pembroke  Lord,  Doe  d.  Johnson 

v.     .  .  .  .  284 

Pendrill  v.  Pendrill  .        .  284 

Pendockj  d.  Mackinder  v.  Mack- 

inder        .  .  .  294 

Pennant's  case  .  76,  155,  173,  197 
Penphrase  v.  Lord  Lansdowne  .  292 
Percival,  Thrustout,  d,  Dun- 


ham v. 
Perkins,  Doe,  d.  Burrell  v. 
Peto  v.  Checy 
Peterson,  Barnes  v. 
Petifer,  Ward  v. 
Petty,  Eccleston  v.      .  < 

Pettit,  Doe.  d.  Human  v.     . 
Peytoe's  case      .  . 

Phillips,  Chawortb  v. 

,  Clarke  v. 

v.  Bury 

,  Snow,  d.  Crawley  v. 

v.  Hartley 

v.  Pearce 

,  Doe,  d.  Birch  v.     . 

, ,  d.  Wilson  v. 


Phipps  v.  Pitcher         .  .     . 

Pierson  v.  Tavenor       .  -"T>  . 

Piers,  Swadling  v.  .     . 

Pierce,  Roe,  d.  Dean  of  Roches- 

ter v.          .       129,  132,  206,  313 


.  355 
.  98 
.  204 
24,25 
.  21 
.  294 
.  281 
.  270 
.  76 
.  101 
.  270 
.  302 
.  114 
80, 276 
.  353 
.  189 
.  296 
.  345 
.  217 


Davis  v. 


281 
40 
298 


Piggott  v.  Palmer      . 
Pike  v.  Badmering 
Pilkington,  Doe,  d.  Hardman  v.  225, 

226 

Pick,  Crofts  v.  •  .       .     69 

Pinero  v.  Judson  .  •  119 

Piper,  Cople&torie  v.  !.'•'.  .  25 
Pitcher,  Phipps  v.  .  .  .  296 

--  ,  Rogers  v.  .  .69 

Pitt,  Reynolds  v.     .  .  183 

Pitfall,  Foster  v.  .         .  39,  40 

Pleasant,  d.  Hayton  v.  Benson  .  130 
Plowman,  Doe,  d.  Bradshaw  v.  .  25 
Plomer  v.  Hockhead  .  .  201 

Pluraptree,  Doe,  d.  Wright  v.  .  99 
Podger's  case  .  .  97,  99,  100 


Pooley  v.  Bentley 
Pollard  v.  Luttrell 
— ,  Audley  v. 


PAGE 

....         •  118 
.      .  100 
.  100 

Pomfret  v.  Windsor  .         .     91 

Pope,  Goodtitle,  d.  Taysurn  v.  .  364 
Porch,  Doe,  d.  O'Connell  v.  .  227 
Porter,  Doe,  d.  Shore  v.  70,  125,  214 
•,  Girdlestone  v.  .  .  384 


Positive,  Negative,  d.  Parson  v.  248 
Pott,  Doe,  d.  Gibbons  v.  .  33 
Potts  v.  Durant  .  ',  .  .  304 
Poultney  v.  Holmes  .  .  178 
Powell  v.  Milburn  .  .  .  203 
-,  Doe,  d.  Lloyd  v.  .  .  182 


Power.  Rowe,  d.  Boyce  v.      .  98,  329 
Price,  Hancock  v.          ^ .  .25 

-,  Right,  d.  Cator  v.      .291,  294 


Prideaux,  Doe,  d.  Brune  v.  110,  124 
Pritchard,  Jenkins,  d.  Harris  v.  95.  281 
Proctor  v.  Johnson  .  .  346 

Proudfoot's  case          .  .      .     68 

Prossor,  Doe,  d.  Fishar  v.  .     55 

Proude,  Green  v.         .  .     .     89 

Pughv.  Duke  of  Leeds     .  .  223 

Puller,  Hutchinson  v.  ,  .  .27 
Pulteney  v.  Warren  .  .  383 

Pure,  d.  Withers  v.  Sturdy  .  170 

Purvis,  Denn,  d.  Burghes  v.  .  221 
Purdy,  Davis  v.  .  ...  223 


Q. 
Quigley,  Doe,  d.  Knight  v.     107,  123 


R. 

Radcliffe  v.  ChapMn  '."        .  287 

Raffan,  Doe,  d.  Peacock  v.     .      .  144 
Ramsbottom  v.  Brickhurst  .  301 

,  Doe,  d.  Jackson  v.     276 

Rancliffe  (Lord)  v.  Parsons          .  289 
Rand,  Guy  v.  .  .     .  221 

Ratclifle's  case      .  .  .66 

v.  Tate         .  .     .  345 

,  Loveless  v.         .  .  345 

Rawsterne,  Reading  v.  .     .     54 

Rawlings,  Denn  d.  Brune  v.  107,  110, 

124, 304 

,  Tempest  v.      .  .115 

Rawson  v.  Maynard     .  .     .     27 

Reading  v.  Rawsterne      .  .     54 

Reade,  Doe,  d.  Burrough  v.     .     .     71 

,  Peaceable,  d.  Hornblower 

v.  ...    56,  98 

,  Roe.  Reade  v.        .        .    32 

,  Doe,  d.  Marsack  v.  129,  210, 

277,  306 

Rede  v.  Farr         .  .  .198 

Redfern,  Doe,  d.  Hayne  v.    .       .79 
Rennie  v.  Robinson      .  .  276 


XXV111 


TABLE    OF    CASES    CITED. 


PAGE 

Rennet,  Rex  v.  .  63 

Rex  v.  Bishop  of  London  .     19 

v.  Bery  .  .  183 

v.  Burgesses  of  Carmarthen     325 

T.  Erith     .          .  .     .  284 

v.  Eriswell     .  .     284,303 

v.  Harris      .  .  .  34.5 

v.  Luffe 

v.  Mayor  of  Bristow     . 

v.  Old  Arlesford      . 

v.  Rennet 

v.  Shelly     . 

v.  Stoke      . 

v.Unitt     . 

Reynolds,  Doe  v.  . 
v.  Pitt 


Rhodes,  Scrape  v.         •    . 
Rice,  Massey  v.     . 
Rickhouse,  Rochester  v. 
Rich,  Goodright,  d.  Balsh  v. 

,  d.  Cullen  v.  Johnson 

,  Wilson  v.  '   .     ' 

,  Ryal  v. 

Richardson  v.  Lengridge 

,  Burne  v. 

Rickarby,  Doe,  d.  Hindly  v. 
Rider,  Osbourn  v. 
Ridgway,  Doe,  d.  Sutton  v. 
-,  Higham  v. 


.  22 
,  206 
.  351 
.  183 
.  226 
.  28 
25,  26 
.  276 
.  309 
.  201 
.  154 
.  106 
.  383 
.  318 
.  223 
.  360 
.  283 
.  334 
.  291,  294 


Rigley  v.  Lee 

Right,  d.  Cater  v.  Price 

,  d.  Dean  of  Wells  v.  Bawden 

124 

,  d.  Fisher  v.  Cuthell    .  126, 128 

,  d.  Flower  v.  Darby      124,  139, 

140,  143 

,  d.  Lewis  v.  Beard       .  107, 121 

,  Birch  v.  60.  109, 137, 154,  307, 

381 

,  d.  Freeman  v.  Roe 

—  v.  Wrong 
Rivington  v.  Allen 
Roake,  Nowell  v. 
Roberts  v.  Cook 
-,  Fagg  v. 


Robinson,  Millencr  v. 
-.Rennie  v. 


.  237 
.  237 
.  32 
.  391 
.  357 
.  323 
.  210 
.  276 
25,26 
.  130 
.  287 
.  138 
304 


Rochester  v.  Rickhouse 

Roe,  d.  Bamford  v.  Hayley 
,  d.  Beebee  v.  Parker 
,  d.  Bree  v.  Lees 
,  d.  Brune  v.  Rawlins 
,  d.  Burlton  v.Roe  228,246,  264 
,  d.  Cholmondley  v.  Doe  .  325 
,  d.  Cook  v.  Doe  .  .  266 
,  d.  Cosh  v.  Loveless  .  64,  309 
,  d.  Crumpton  v.Minshull  154, 
174 

,  d.  Dingley  v.  Sales  .  179 

,  d.  Durant  v.  Doe  .  .  375 
,  d.  Ebrall  v.  Lowe  .  .  79 
,  d.  Goatlyv.  Paine  .  184 


PAGE 

Roe,   d.  Gregson  v.  Harrison  178, 190, 
191,  196 

,  d.  Haldane  v.  Harvey         .    32 

,  d.  Hambrook  v.  Doe  .    237,  244 

d.  Henderson  v.Charnock    129, 

141 

,  d.  Humphries  v.  Doe  .  347 

,  d.  Hunter  v.  Galliers  .159,180 
>  d.  Hyde  v.  Doe  .  .  268 

,  d.  Jackson  v.  Ashburner  .  11.1 
,  d.  Jeffreys  v.  Hicks  64,  98,  308 
,  d.  Johnson  v.  Ireland  .  309 
,  d.  Jordan  v.  Ward  .  105,  111, 
143 

,  d.  Kaye  v.  Soley  .  .  365 
,  d.  Langdon  v.  Rowlston  .  56 
,  d.  Leak  v.  Doe  .  .  258 

,  d.  Lee  v.  Ellis  .  .  228 

,  d.  Matthews  v.  Jackson  .  134 
,  d.  Pellatt  v.  Ferrars  .  57 

,  d.  Raper  v.  Lonsdale  •  210 

,  d.  Reade  v.  Reade  .  .  32 
,  d.  Dean  of  Rochester  v. 

Pearce         .    129,132,216,313 

,  d.  Saul  v.  Dawson  .  .  341 

,  d.  Stephenson  v.  Doe          .  224 

,  d.  Thorne  v.  Lord      .  .  282 

,  d.  Truscott  v.  Elliott  .     98 

,  d.  West  v.  Davies  160,  162, 166, 

168,169,311,316 

,  d.  Wrangham  v.  Hersey     .213 

v.  Wiggs  .  .  130, 235 

v.  Williamson  .          .  215 

,  Doe,  d.  Lord  Aylesbury  v..  242 

, ,  d.  Bass  v.         .  233 

, ,  d.  Baddam  v.    .        .  236 

, ,  d.  Bailey  v.  .  237 

, ,  d.  Beyer  v.    .  .  342 

, ,  d.Birdv.  .         .  232 

, ,  d.  Bradford  (Earl  of,) 

v.  .  374 

, ,  d.  Bromley  v.  .  237 

, ,  d.  Cardigan,  (Earl  of,) 

v.  ...  374 

, ,  d.  Clarke  v.  .  231 

, ,  d.  Cobbey  v.  .  225 

, ,  d.  Davis  v.         .        .  323 

, ,  d.  Dry  v.         .  .  239 

, ,  d.  Edwards  v.  .  244 

, ,  d.  El  wood  v.  .  237 

, ,  d.  Evans  v.          .       .  172 

, ,  d.  Feldon  v.  .  366 

, ,  d.  Fenwickv.  .  240 

, ,  d.  Field  v.       .  .  237 

, -,  d.  Ginger  v.  .  263 

, ,  d.  Grocers'  Company 

v.  .  .  252 

, ,  d.  Harvey  v.  .  239 

, ,  d.  Hcblethwaite  v.    .  252 

, ,  d.  Hele  v.      .  .  210 

, ,  d .  Jones  v.      .  .  240 

, ,  d.  Leak  v.         .         .  258 


TABLE    OF    CASES    CITED. 


XXIX 


Roe,  Doe,  d.  Ledger  v. 
-,  d.  Lewis  v. 
-,  d.  Lowe  v. 


PAGE 

.  252 
.  232 
.  240 
.  237 
.  350 


,  d.  M'Dougallv. 

,  d.  Morgan  v.    . 

,  d.    Governors  of  St. 

Margaret's  Hospital  v.       .  229 

,  d.  Neale  v.  .       .  239 

,  d.  Pate  v.       .  .  345 

,  d.  Pearson  v.     .  230,  260 

,  d.  Pemberton  v.         .  374 

,  d.  Phillips  v.    .         .  374 

,  d.  Pinckard  v. 

,  d.  Quintin  v. 


-,  d.  Robinson  v. 
-,  d.  Rust  v.     . 
-,  d.  Sampson  v. 
-,  d.  Shepherd  v. 
-.  d.  Seabrooke  v. 
-,  d.  Simmons  v.  . 


359 
244 
245 
272 
374 
211 
172 
236 
232 
237 


,  d.  Thomos  v.    . 

,  d.  Tindalv. 

,  d.  Troughton  v.   252,  267 

,  d.  Tubb  v.    .  .  363 

,  d.  Whitfield  v.      167, 244 

,  d.  Wright  v.     .         .  242 

,  Fenn,  d.  Buckle  v.    .  239 

Ranger,  d.  Goodtitle  v.         .  207 

Right,  d.  Freeman  v.      .       .  237 

Roe,  d.  Burlton  v.    228,  246,  264 

Baker  v.  .  .      .    19 

Doe  v.        .       229,  237,  240,  245 

Rogers  v.  Pitcher  .  .     69 

Rolle,  Gree  r.         .         .  51, 100,  333 

Rolfe  v.  Harris     .  .  .183 

Rosser,  Doe,  d.  Morris  v.  .     92 

Rowe,  Doe  d.  Knight  v.        .       .  190 

,  d.  Boyce  v.  Power       .    98,  329 

v.  Hasland  .  .  285 

Rowlston,  Roe,  d.  Langdon  v.          56 
Rowlinson,  Timmins  v.  106, 132,  154, 

381 

Rowell,  Clerke  v.     .  .  215,  327 

Rowkeley,  Lee  v.  .  .  334 

Royston  v.  Eccleston        .   23,  27,  28 
Rudston  v.  Yates  .  .     67 

Russel,  Webb  v.  .  .  76,  190 

Rumney  v.  Eves     .  •  , .      .  286 

Ryal  v.  Rich         >  .  .      .154 

S. 

Saint  Leger  v.  Adams  .          .  289 

Saint  John  v.  Comyn    .  .  24, 25 

Sales,  Roe,  d.  Ding  ley  v.  .           179 

Salisbury  (Lord's)  case  .            307 

,  Focus  v.     .  .        101 

Salter,  Doe,  d.  Toilet  v.  .              220 

-, ,  d.  Prior  v.  .          337 

Saltonstall,  Capel  v.     .  .        228 

Samuel,  Doe  d.  Castleton  v.   143,  315 

Sandwich,  (Lord's,)  case  .         .  324 


PAGE 

Savel's  case         .  .  .27 

Hamond  v.  .     27 

Savage  v.  Dent         .  .  199, 205 

Saville,  Goodtitle,  d.  Luxmore  v.  186 
Say  and  Sele  (Lord)  Jones  v.  82,  83 
Sayer,  Doe,  d.  Leeson  v.  .  107, 123 
Scott,  Doe,  d.  Graham  v.  .89 

, ,  d.  Foster  v.         .       .     50 

, ,  d.  Campbell  v.          .  140 

Scrape  v.  Rhodes         .  .     .  226 

Scrutton,  Driver,  d.  Scrutton  v.  226 
Seagrave,  Sullivane  v.  .  .27 

Seawell,  Bond  v.        .  .          293 

Seers  v.  Hind      .  .        190,191 

Seed,  Tyley  v.          .  ,      .  141 

Selwyn,  Doe,  d.  Wadmore  v.  .  145 
Semayne's  case  .  .  .  342 

Serle,  Claxmore  v.      .  .      .  323 

Seymour's  case         .  .      36, 96 

Sbamtitle,  Fairclaim,  d.  Fowler  v. 

14,54,55,257,259,261 
Shackleton,   Fairclaim,  d.  Emp- 

son  v.  .  .        53,  54 


Shank,  Douglas  v. 
Shapland  v.  Smith    . 
Sharpe,  Chapman  v.  . 

• —  Hodson  v. 

Shawcross,  Doe,  d.  Lawrence  v. 
Sharrington  v.  Strotton    u  ^ 
Sherman  v.  Cocke         . 
Shelly,  Rez  v. 

,  Musgrave,  d.  Hilton  v. 

Sherwin,  Earl  of  Bath  v. 

,  Doe,  d.  Pitt  v. 

Shirley  v.  Newman 

Shires  v.  Glasscock     .  . 

Short  v.  King          . 

v.  Heath 

,  d.  Elmes  v.  King 

Silvester,  d.  Law  v.  Wilson 
Sil  ley,  Collins  v. 
Sims,  Knight  v. 
Sindercombe,  Bindover  v. 
Skinner  v.  Stacey 
-,  Ablett  v. 


222 
82 
66 
276 
213 
47" 
199 
298 
96 
352 
.  183 
.  141 
.      .  293 
356,  359 
.  393 
.     .  239 
•     89 
.    76 
.     28 
.     23, 27 
.  364 
.  221 
Slade's  case         .  .  .70 

,  England,  d.  Sybourn  v.  89, 

276 

Sleabourne  v.  Bengo        .  .  330 

Smales  v.  Dale         .  .    .    98 

Smartle  v.  Williams        .  .    61 

Smartley  v.  Henden      .  .  202 

Smart,  Wharod  v.    .  .  350 

,  Fenn,  d.  Matthews  v.  98,  190 

Smalley  v.  Neale        .  •     .  239 

Small,  d.  Baker  v.  Cole      .     324,  331 
Smith,  d.  Ginger  v.  Barnardiston  339 

357 

,  Doe,  d.  Bland  v.          .     .  302 

,  Doe  d.  Chere  v.    .  .  191 

•,  Doe,  d.  Hanson  v.       •      .  298 

•,  Lady,  Doe,  d.  Knight  v.    .  260 


XXX 


TABLE    OF    CASES    CITED. 


PAGE 

Smith,  Doe,  d.  Lord  Jersey  v.      .  162 

,  Doe,  d.  Smith  v.          .       .  299 

,  Doe,  d.  Bromfield  v.    116,  125 

,  Knight,  d.  Phillips  v.        .    85 

,  Throgmorton,  d.  Miller  v.   354 

.  Blackham  ,  • v        .  280 

.Barrett          .-  .     .     19 

.Crabb        .         i  .  264 

.  Evans  .  .  291 

Spooner     .  .        .  168 

,  Vernon  .         .    74,  75 

,  Brice.  v.  .  .  294 

,  Davy  v.  •     .  293 

,  Ellis  v.  .  291,  292 

,  Merrellv.  .  .  225 

,  Shapland  v.  •  .-.       .     82 

Snapp,  Archer,  d.  Hankey  v.  .  365 
Snell,  Bird  v.  .  .  204 

Snow,  d.  Crawley  v.  Phillips  .  302 
Snowdon,  Doe,  d.  Daggett  v.  .  147 
Soley,  Roe,  d.  Kaye  v.  .  .  365 
Somerville,  Doe  d.  Cates  v.  .121 
Soulsby  v.  Neving  .  .  154 

Spark,  Weeks  v.    .  .      .  284 

Sparkes's  case      .  .  .63 

Sparrow,  Wykes  v.     .  .     .     28 

Spence,  Doe  d.  Strickland  v.  146,  147 
Spencer's  case  .  .73 

,  Doe,  d.  Clarke  v.     .  67,  68 

. ,  d.  Osborne  v.     .    98 

Spiller,  Doe  v.          •    .-"''  .  133 

Spooner,  Smith  v.      .  .          168 


Spray,  Denn,  d.  Goodwin  v. 
Sprightley,  d.  Collins  v.  Dunch 
Spry,  Doe,  d.  Gaskell  v. 
Spurrier,  Dann  v.  . 

Stanton,  Doe,  d.  James  v. 
Stanley,  Asbworth  v. 
-,  Leymayne  v. 


.  287 
.  239 
.  182 
.  138 
.  277 
.  25 
.  290 
23,  25 
33,  89 
.  364 
.  338 


Stafford,  Macdunoch  v. 

Staple,  Doe  d.  Hodson  v. 

Stacey,  Skinner  v.  . 

Stapely,  Morgan  v. 

Stephens,  Copelandv.      .  .     69 

Sterne,  Pemble  v.  .          .  22,  28 

Stennett,  Doe,  d.  Hollingsworth 

v.  ...  107,  122 
Steele,  Doe,  d.  Digby  v.  .  151,  300 
Stephens  v.  Elliot  .  .  .  63 

Stephenson,  Doe,'d.  Walker  v.  298,  355 
Stephens  v.  Croker  .  .  223 

Stoke,  Rex  v.  .  .22 

Stone,  Jurdan  v.      f   f-       •' '       .  66 
Story.  Windsor  v.  •    *'         .56 

Stockerv.  Barney    .  .         .     77 

Stonehouse  v.  Evelyn  .  .  291 

Stowell  v.  Zouch       .    58,  59,  97,  102 
Stradling,  Doe  v.  .  .  277 

,  Sullivan  v.          .        .  276 

Stratton,  Doe,  d.  Tilt  v.  .  112 

Strother,    Goodright    d.    Small- 
wood  v.  .  '     30,  218 


PAGE 

Strotton,  Sharrington  v.  .     47 

Stroud,  Hems  v.         .             .  29, 304 

Sturgeon  v.  Painter          .  .  114 

Sturdy,  Pure,  d.  Withers  v.  .170 

Sturt  v.  Mellish             .  •     58 

Sullivan  v.  Stradling             .  .  276 

v.  Seagrave      .  .     37 


Swann,  Fox  v.     .         .    177,  192,  280 
Swadling  v.  Piers  •*'.*  .217 

Sykes,  d.  Murgatroyd  v 124 

Symonds,  Whiteacre,  d.  Boult  v.     153 
Syms,  Dumpor  v.         .  .  190 


T. 


Tailbois,  Wimbish  v.         .  43, 44 

Tankard,  Whaley  v.  .          .     97 

Tapner,  d.  Peckham  v,  Merlott  95,  99 
Tate,  Ratcliffe  v.  .          .  345 

Tatham,  Jones  v.          .  .     .  173 

Tavenor,  Pierson  v.  .          .  345 

Taylor,  d.  Atkins  v.  Horde  41,  327. 

339 

v.  Cole     . 

v.  Jefts 

v.Wilbore 


69 
235 
332 
213 
294 
115 
3]  7 


Telling,  Doe,  d.  Weatley  v. 

Temple,  Macbel  v. 

Tempest  v.  Rawlings 

Tenny  d .  Gibbs  v.  Moody        82 

Thatcher,  Hazlewood,  d.  Price  v.  233 

Thompson  v.  Maberly  .       .   137 

,  Kirkman  v. 

,  Barwick,  d.  Mayor  of 

Richmond  v. 

Thomas  d.  Jones  v.  Thomas         . 
—  William,  d.  Hughes  v.     . 

v.  Goodtitle 

•,  Challenor  v. 


40 


,  Kesworth  v. 

,  Doe,  d.  Courtall  v. 

— ,  Doe,  d.  Rees  v. 


Tborne,  Jones  v. 

,  Doe,  d.  Enimett  v. 

Thornby  d.  Hamilton  v.  Fleet- 
wood  '  .  .       .  338 
Thorpe  v.  Fry                   .  .  389 

,  Hatfield  v.    .  .       .  296 

Throgmorton  d.  Fairfax  v.  Bent- 
ley  ...  323 

d.  Miller  v.  Smith    .  354 

Threr  v.  Barton  .  76,  190 

Tbredder  v.  Travis  .  .  231 

Tbrustout  d.  Dunham  v.  Percival  355 

,  Farmer  d.  Miles  v.      .  239 

,  Goodright  d.  Wadding- 
ton  v.  ...  208 

,  Goodright  d.  Jones  v.  236, 

355 
,  Hyde  d.  Culliford  v.  .  252 


TABLE    OF    CASES    CITED. 


XXXI 


PAGE 

Thrustout,  d.  Parke  v.  Trouble- 
some .  .         359,  361 
,  d.  Turner  v.  Gray  226,  320, 

354 

,  d.  Wilson  v.  Foot        .  335 

,  d.  Williams  v.  Holdfast 

356, 359 

,  v.  Bedwell  .  320,335 

Thunder  d.  Weaver  v.  Belcher  61 , 107, 
109,  122,307 

Thyn  v.  Thyn  .  .19 

Tiley  v.  Bailey  .  .  337 

Timmins  v.  Rowlinson    106, 132, 154, 

381 

Todd  v.  Lord  Winchelsea  .  293 

Tomkins,  Lowthal  v.  .     69 

Tombs,  Goodtitle  v.  383,  391 

Toogood,  Bagshaw  d.  Ashton  v.  239 
Toulson,  Wheeler  v.  .  21. 22 

Townsend  v.  Ives  .  .  297 

Travis,  Thredder  v.         .  .  231 

Treport's  case  .  .       .  209 

Tredway  v.  Harbert  .  355,  356 
Troublesome,  Peaceable,  v.  .  233 

,  Thrustout,  d.  Parke 

v.          .  359,  361 

Trussell,  Doe,  d.  Lep  ping  well  v.  339 
Trapaud,  Doe,  d.  Clarke  v.  .  307 
Trymmer  v.  Jackson  .  .  291 

Tunstall,  Duckworth,  d.  Trebly, 

v.  ...  171 

v.  Brend        .  .      .  208 

Tupper  d.  Mercer  v.  Doe  .  237 

Turner,  Bourne  v.  .      .  279 

v.  Barnaby         .         322,  334 

Tyley  v.  Seed  .  .  141 
Tyrrell,  Davenport  v.  .  56 
,  Doe,  d.  Lord  Tynhatn  v.  280 


U. 

Underbill,  Devereux  v.  .  345 

Unitt,  Rex  v.             .  .          206 

Upton  v.  Wells  .             .  344 

Uttersou  v.  Vernon  .       .  385 


V. 

Vernon,  Doe,  d.  Vernon  v.  65,  298 
v.  Smith  .  74, 75 

,  Utterson  v.  .  .  385 

Vicars  v.  Haydon,  d.  Carrol  .  228 
Vice,  Goodright,  d.  Rowell  v.  .  334 
Vivian,  Goodright,  d.  Peters  v.  182 

v.  Arthur  .  .  75 

Vince,  Doe,  d.  Hinde  v.  .  136,  146 
Vowels  v.  Young  .  283,  284,  286 


Wade  v.  Cole 


W. 


PAGE 

Wadman  v.  Calcraft  .      .171 

Waddy  v.  Newton  .  .     20 

Wagstaff,  Gulliver  v.  .          243 

Wakefield,  Goodgaine  v.  .  223 

Wakeley,  Warren  v.  .  25,  28,  222 
Walthew,  Ward  v.  .40 

Walton,  Goodtitle  v.  .       .     25 

Wallis,  Law  v.     .  .  .  324 

Walter,  Goodtitle,  d.  Bembridge 

v.  .  .  218,  220 

Wandlass,  Doe,  d.  Forster  v.  168,342 
Warneford  v.  Warneford  .  291 

Warren  v.  Wakeley  25,  28,  222 

,  Pulteney  v.  .      .  383 

Warden's  case  .  .  29 
Ward  v.  Pettifer  .  .  .  21 
v.  Walthew  .  .  40 


,  Roe,  d.  Jordan  v.  105,  111,   143 

Warwick,  Doe,  d.  Giles  v.  .  277 
Watt,  Doe,  d.  Henniker  v.  .  .  188 
Watson,  Doe  d.  Lowdon  v.  .  276 
v.  King  .  .  285 


Watkins,  Doe,  d.Lord  Bradford  v.  131, 
132,  148 

Watts,  Doe,  d.  Martin  v.  .111 

Watts,  Doe,  d.  Duckett  v.     .     95,  99 

Way,  Goodtitle,  d.  Estwick  v.  .    80, 

112, 114 

Webb  v.  Russell  .  76,  190 

Wedgwood,  Halsal  v.  .  .  239 
Weeks  v.  Sparkes  .  .  284 

,  Eastcourt  v.  .     63 

Wells,  Upton  v.  .  .  344 

Wellington,  Danvers  v.  .     26 

Welsh.  Beck,  d.  Hawkins  v.         .    67 

,  Doe,  d.  Gunson  v.       .      .  277 

Wells,  Bally  v.       .  .73 

Weakley,  d.  Yea  v.  Bucknell  33,  112 
Weller,  Doe,  d.  Collins  v.  .  143 

Wemsley,  Howard  v.  .       .  139 

Weston,  Heatherley,d.  Wortbing- 

ton  v.  ...  210 

West,  Connor  v.  .        24, 28 

Wharod  v.  Smart  .  .  350 

Whaley  v.  Tankard  .      .    97 

Wharton,  Doe,  d.  Da  Costa  v.  32,  61, 
65,70,110,  304 

Wbayman,  Doe,  d.  Chaplin  v.  .  128 
Wheeler  v.  Toulson  .  21,22 

,  Doe,  d.  Bedford  v.  .  192 

Wheatley,  Comyn  v.  .     20 

,  Wright  v.  .23 

Whitlockev.  Baker  .       .286 

White,  Trustees  of  British  Mu- 
seum, v.       .  .  .  291 

,  Denn  -v.  .  .          390 

,  Maddon,  d.  Baker  v.       67,126 

Whiteacre,  d.  Boult  v.  Symonds  153 
Whitehead,  Doe,  d.  Odiarne  v.  37,  96 
Whitley,  Johns  v.  .  .  198 
Wiggs,Roev.  .  130,235 
Wilson  v.  Rich  .  .  201 
v.Hodges  .  .  .  S82 


NOTICES,  1831. 

Section  4.  "  Provided  always,  that  notwithstand- 
(<  ing  any  judgment  signed  or  recorded,  or  execution 
"  issued,  by  virtue  of  this  act,  it  shall  be  lawful  for 
"  the  court  in  which  the  action  shall  have  been  brought, 
"  to  order  such  judgment  to  be  vacated,  and  execu- 
"  tion  to  be  stayed  or  set  aside,  and  to  enter  an 
"  arrest  of  judgment,  or  grant  a  new  trial,  or  new  writ 
"  of  inquiry,  as  justice  may  appear  to  require  ;  and 
"  thereupon  the  party  affected  by  such  writ  of  execu- 
"  tion  shall  be  restored  to  all  that  he  may  have  lost 
"  thereby  in  such  manner  as  upon  the  reversal  of  a 

judgment  by  writ  of  error,  or  otherwise  as  the  court 

may  think  fit  to  direct." 

Section  5.  tc  Provided  always,  and  be  it  further 
f(  enacted,  That  nothing  in  this  act  contained  shall  be 
"  deemed  to  frustrate  or  make  void  any  provision  re- 
"  lating  to  the  issuing  of  any  writ  of  habere  facias 
<e  possessionem  contained  in  the  act  passed  in  the  first 
"  year  of  the  reign  of  his  present  Majesty,  intituled, 
ee  An  Act  for  the  more  effectual  Administration  of 
"  Justice  in  England  and  Wales." — Vide  page  376, 
&c. 

The  presiding  judge  in  trials  of  ejectment  has  there- 
fore the  power  of  certifying  either  under  the  Stat. 
II  G.  4,  &  1  Wm.  4.  c.  70,  s.  38,  or  Stat.  1  Wm.  4, 
c,  7.  s.  2. 


(C 


By  Reg.  Gen.  of  the  courts  of  King's  Bench,  Com- 
mon Pleas,  and  Exchequer  of  Trin.  Term,  1  Wm.  4, 
it  is  ordered,  "  That  declarations  in  ejectment  may 
<f  be  served  before  the  first  day  of  any  term,  arid 
f<  thereupon  the  plaintiff  shall  be  entitled  to  judgment 
"  against  the  casual  ejector,  in  like  manner  as  upon 
"  declarations  served  before  the  essoign  or  first  gene- 
"  ral  return  day." — Vide  page  234,  &c. 


A 

»  / 

TREATISE 


ON    THE 


ACTION   OF   EJECTMENT. 


CHAPTER  I. 

Of  the  Origin,  Progress,  and  Nature  of  the  Action 
of  Ejectment. 

THE  action  of  ejectment  is  a  fictitious  mode  of 
legal  proceeding,  by  which  possessory  titles  to  cor- 
poreal hereditaments  and  tithes,  may  be  tried,  and 
possession  obtained,  without  the  process  of  a  real 
action. 

The  alterations,  which  from  time  to  time  have 
taken  place,  in  the  nature  and  uses  of  the  action  of 
ejectment,  form  a  remarkable  and  important  branch 
of  the  changes  effected  in  our  general  system  of 
remedial  law.  From  being  a  mere  action  of  tres- 
pass to  recover  the  damages  sustained  by  a  lessee  for 
years,  when  ousted  of  his  possession,  it  has  gradually 


2  ON    THE    ORIGIN,    &C.    OF    THE 

usurped  the  place  of  all  the  ancient  remedies  for  the 
recovery  of  possessory  rights  to  real  property,  and 
is  at  the  present  time  the  universal  mode  of  trying 
possessory  titles.  The  alterations  have  however  been 
effected  by  the  most  simple  and  natural  means ;  and 
in  tracing  the  remedy  through  its  several  grada- 
tions, it  will  be  found  continually  moulding  itself  to 
the  condition  of  the  times,  and  extending  its  uses 
and  powers,  as  the  progress  of  civil  society  rendered 
necessary  or  convenient. 

In  the  earlier  periods  of  our  history,  estates  for 
years,  according  to  their  present  import,  were  un- 
known. Under  the  feudal  system,  war  was  the  pri- 
mary object  even  of  legislation ;  and  it  is  therefore  by 
no  means  surprising,  that  the  interests  of  the  inferior 
tenantry  were  then  disregarded,  and  the  remedies 
for  the  recovery  of  lands  altogether  confined  to  free- 
hold titles,  vested  in  the  superior  landholders.  The 
lords,  indeed,  seldom  permitted  their  vassals  to  enjoy 
any  interest  in  the  lands  they  occupied,  which  could 
render  them  independent  of  their  will ;  and,  even 
when  they  did  grant  them  a  right  to  the  possession 
for  a  determinate  period,  as  a  stimulus  to  increase 
their  industry,  such  grants  were  not  considered  as 
transferring  to  the  grantee  any  title  to  the  land,  but 
merely  as  agreements  or  contracts  between  the  lord 
and  his  vassal. 

The  old  writ  of  covenant,  adapted  at  that  time  to 
the  recovery  of  the  term,  as  well  as  of  damages,  was 
the  only  remedy  to  which  the  tenants  were  entitled 
upon  these  leases.  But  this  writ  could  only  extend 


ACTION    OF    EJECTMENT.  6 

to  cases  in  which  there  was  a  breach  of  the  original 
contract,  and  the  tenant  was  therefore  altogether 
without  means  of  redress,  when  dispossessed  of  his 
land  by  the  act  of  a  stranger,  not  claiming  under  the 
grantor.  Great  difficulties  also  attended  the  proceed- 
ings upon  the  writ  of  covenant.  It  only  lay  between 
the  immediate  parties  to  the  grant,  and,  as  it  fre- 
quently happened  that  the  tenant  was  dispossessed,  by 
a  person  claiming  under  a  subsequent  feoffment  from 
his  grantor,  and  not  by  the  grantor  himself,  he  was 
then,  notwithstanding  the  breach  of  the  original  con- 
tract, enabled  to  recover  only  damages  for  the  injury 
he  had  sustained,  but  had  no  means  of  regaining  pos- 
session of  the  land  from  which  he  had  been  ousted,  (a'j 

So  regardless,  however,  was  the  law,  during  the 
first  ages  after  the  conquest,  of  grants  of  this  nature, 
that  until  the  time  of  King  Henry  III.  this  writ  of 
covenant  remained  the  sole  remedy  of  the  grantee, 
even  upon  a  breach  of  the  grant.  In  that  reign  the 
first  symptoms  of  a  more  enlightened  policy  appeared ; 
and  by  the  wisdom  of  the  court  and  council,  a  full 
remedy  was  provided  for  a  termor,  who  was  dis- 
possessed of  his  land,  against  all  persons  whatsoever, 
claiming  under  the  title  of  the  grantor,  (a) 

The  writ  invented  for  this  purpose  was,  accord- 
ing to  Bracton  (a),  called  the  writ  of  quare  ejecit 
infra  termimtm,  and  required  the  defendant  to  show 
wherefore  he  deforced  the  plaintiff  of  certain  lands, 
which  A.  had  demised  to  him  for  a  term  then  un- 

(«)  Bracton,  I).  4.  f.  220 

B2 


4  OF    THE    ORIGIN,    &C.    OF    THE 

expired,  within  which  term  the  said  A.  sold  the  lands 
to  the  defendant,  by  reason  of  which  sale  the  defend- 
ant ejected  the  plaintiff  therefrom. 

The  language,  indeed,  used  by  Bracton  («),  when 
speaking  of  this  writ,  may  at  first  sight  induce  an 
opinion,  that  it  was  intended  as  a  general  remedy 
against  all  persons,  even  strangers,  who  ejected  a  les- 
see ;  and  this  interpretation  has  been  adopted  by  a 
learned  writer  on  the  English  law  (£).  On  a  minute 
investigation,  however,  it  will  appear  that  Bracton 
meant  only  to  include  the  grantor  himself,  or  persons 
claiming  under  him.  One  passage  certainly  militates 
against  this  conclusion,  "  Si  autem  alius  quam  qui 
tradidit  ejecerit,  si  hoc  fecerit  cum  AUTORITATE  et 
VOLUNTATE  trctdentis,  uterque  tenetur  hoc  juditio, 
unus  propter  factum,  et  alius  propter  autoritatem. 
Si  autem  sine  VOLUNTATE,  tune  tenetur  eject  or  utrique, 
tarn  domino  proprietatis,  quam  Jirmario  :  Jirmario 
peristud  breve,  domino  proprietatis  per  assisamnova 
disseysina,  ut  unus  rehabeat  terminum  cum  damnis, 
et  alius  liberum  tenementum  suum  sine  damnis" 
But  the  difficulty  is  removed  by  the  next  sentence, 
in  which  he  says,  "  Si  autem  dominus  proprietatis 
tenementum  ad  firmam  traditum  alicui  dederit  in 
dominico  tenendum,  seysinam  ei  facer e  poterit  SALVO 
FIRMARIO  TERMING  suo."  And  it  seems  therefore,  that 
in  the  latter  clause  of  the  passage  first  above  cited, 
particularly  from  the  omission  of  the  word  autoritate 
in  it,  Bracton  only  alluded  to  cases  where  the  grantor 


fa)  Bracton,  b.  4.  f.  220. 

(6)  Reeves,  Eng.  Law,  Vol.  I.  p.  341. 


ACTION    OF    EJECTMENT. 


had  enfeoffed  another,  without  intending  thereby  to 
injure  his  grantee,  and  such  feoffee  afterwards  en_ 
tered  upon  him.  This  interpretation  is  also  most 
consistent  with  the  spirit  of  the  times  in  which  Brae- 
ton  wrote.  It  was  then  held  that  a  man  could  not 
enter  vi  et  armis  into  his  own  freehold,  and  the  writ 
Square  ejecit  infra  terminum  is  not  a  writ  of  tres- 
pass vi  et  armis,  which,  if  it  had  lain  against  those 
not  having  a  title  to  the  freehold,  it  naturally  would 
have  been.  The  old  authorities  (a)  also,  when  de- 
scribing the  nature  and  effect  of  this  writ,  invariably 
speak  of  it  as  lying  in  those  cases  only  where  the 
ejector  claims  title  under  the  grantor.  A  sale  of  the 
lands  to  the  ejector  is  also  stated  in  the  body  of  the 
writ.  And  indeed,  if  the  interpretation  here  con- 
tended for  be  incorrect,  it  seems  quite  unaccountable, 
that,  more  than  half  a, century  after  the  time  of  Brae- 
ton,  a  new  writ,  namely,  the  writ  of  ejectionejirmtf, 


(a)  Thus,  in  Hil.  Term,  3  Ed-  writ  but  his  writ  of  covenant ;  and 

ward  J.    "In  quare  ejecit  plaintiff  although  by  the  law  a  special  writ 

shall  recover  his  term  and  damages  of  quart  ejecit  is  ordered  against  a 

by  him  sustained  by  reason  of  the  stranger,  a  feoffee,  nevertheless  the 

sale."  (Stat.  Ab.  tit.  qua.  ejec.')     In  lessee  is  not  ousted  of  his  writ  of 

the  Reg.  Brev.  (p.  227.)   "  Fuit  hoc  covenant  against  the  lessor."     This 

breve  inventum  per  discretum  virum  latter  doctrine  is  exactly  that  laid 

Whillielmum    de   Merton    ut  termi-  down   in    Bracton.       So    also  per 

naj-iut    recuperet    cataUa   sua    versus  Choke  J.   (21    Edw.   IV.    10.   30.) 

FEOFFATUM."      In  a  case  in  HiL  "  Quare  ejecit,  $c,   lieth  where  one 

Term,  46  Edw.  III.  4.  12.  per  Ful-  is  in  by  title,   ejections  firmce  where 

thorpe,  Justice,  "  If  a  stranger  oust  one  is  by  wrong  :"    and  per  totam 

a  lessee  by  reason  of  a  feojfinent,  curiam  (19  Henry  VI.  56.  19.),  "  If 

in  that  case  he  is  put  to  his  action  a  man  lease  for  years,  and  sell  to 

upon    the    writ  of   quare    ejecit;"  F.  who  oustes  the  termor,  the  les- 

and  in  the  same  case,  per  Finch-  see  shall  have  a  </«ore  ejecit,  and 

den,  J.    "  In  such  case,  at  the  com-  recover  his  term  and  damages." 
mon  law  the  lessee  had  no  other 


6  OF    THE    ORIGIN,    &C.    OF    THE 

which  only  gave  the  plaintiff  damages,  and  did  not 
restore  the  term,  should  have  been  invented  for  les- 
sees against  strangers,  when  one  so  much  more  bene- 
ficial was  already  in  existence. 

The  writ  of  quare  ejecit  might  be  drawn  either 
as  a  pr&cipe,  or  a  si  te  fecerit  securum,  and,  when 
first  invented,  the  pracipe  was  thought  the  better 
mode  of  proceeding,  though  in  process  of  time,  the 
latter  became  more  generally  used.  It  is,  perhaps, 
from  this  circumstance,  that  Fitzherbert  (a)  has  con- 
sidered the  invention  of  the  writ  to  be  posterior  to  the 
statute  of  Westminster  the  second,  (b) 

The  plaintiff  by  this  writ,  as  by  the  old  writ  of 
covenant,  recovered  both  his  term  and  damages,  if 
the  term  were  unexpired,  or  his  damages  only  in 
case  of  its  expiration  before  the  judgment ;  but  the 
great  advantage  he  derived  from  it,  was  the  power 
of  proceeding  against  third  persons,  as  well  as  against 
the  original  grantor. 

(a)  The  inaccuracy  of  Fitzher-  reasons  are  given  for  its  origin, 
bert,  when  speaking  of  this  writ,  is  The  inaccuracy  is  evident  also  from 
remarkable.  .He  considers  its  in-  another  circumstance.  WALTER  »E 
vention  as  posterior  to  the  statute  MERTON,  called  by  Fitzherbert  Wil- 
of  Westminsters.  (13  Edw.T.),  and  Ham  de  Moreton,  and  in  the  Reg. 
as  intended  to  remedy  a  partial  Brev.  William  de  Merton,  (the  in- 
evil,  occasioned  by  the  writ  of  ventor  of  the  writ),  was  Chancellor 
ejectione  jirmte.  (F.  N.  B.  458.)  in  the  reign  of  Henry  III.  (Dug- 
Bracton,  however,  who  wrote  in  dale's  Chron.),  and  died  in  the 
the  reign  of  Henry  III.  speaks  of  sixth  year  of  Edward  .1.  (Matt, 
the  writ  as  in  use  in  his  time,  and  Westmon.  p.  366.),  seven  years  be- 
as  having  been  invented  to  remedy  fore  the  statute  of  Westminster  2 
the  inconveniences  attendant  on  was  enacted, 
the  old  writ  of  covenant.  In  the  (b)  F.N  B.  458. 
Keg.  Brev.  (227.)  also,  the  same 


ACTION    OF    EJECTMENT.  7 

Notwithstanding  this  favourable  alteration,  the 
farmer  was  still  without  remedy  when  dispossessed  by 
a  mere  stranger,  not  claiming  under  his  grantor.  But 
an  ouster  by  a  stranger  could  then  rarely  happen ; 
and  if  at  any  time  the  vassal  was  so  dispossessed,  he 
would  throw  himself  on  the  protection  of  his  lessor, 
abandon  his  own  claim,  and  leave  the  lord  to  recover, 
by  a  real  action,  both  the  freehold  and  possession. 

In  process  of  time,  however,  the  vassal  demanded 
a  remedy  for  himself,  and  in  the  reign  of  King  Ed- 
ward II.  or  in  the  early  part  of  that  of  Edward  III.  (a) 
a  writ  was  invented,  which  gave  a  lessee  for  years  a 
remedy  (though  in  some  respects  an  imperfect  one) 
against  all  persons  whatsoever,  who  ousted  him  of 
his  term ;  excepting  indeed  where  the  grantor  him- 
self ejected  his  lessee,  and  subsequently  enfeoffed 
another,  in  which  case  the  old  writ  of  quare  ejecit 
was  resorted  to. 

This  new  writ  was  a  writ  of  trespass  in  its  nature. 
The  process  upon  it,  as  upon  all  other  writs  of 
trespass,  was  by  attachment,  distress,  and  process  of 
outlawry.  It  called  upon  the  defendant  to  show, 
wherefore,  with  force  and  arms,  he  entered  upon  cer- 
tain lands  which  had  been  demised  to  the  plaintiff 
for  a  term  then  unexpired,  and  ejected  him  from  the 
possession  thereof;  and  comprised  all  cases,  with  the 
single  exception  already  mentioned,  in  which  the 
second  lessee,  coming  into  possession  by  means  of  a 


(a)  The  first  recorded    instance      in  the  44tli  year  of  Edward  111. 
of  an  action  of  cjcclionc  Jinnee,  is      (Trin.  11  Kdw.  III.  22.  '.Jo.) 


8  OF    THE    ORIGIN,  &,C.    OF    THK 

title,  could  not  be  said  to  be  a  trespasser.  Even  the 
grantor  was  liable  to  be  sued  upon  this  new  writ, 
notwithstanding  the  old  doctrine,  that  a  man  could 
not  enter  vi  et  armis  into  his  own  freehold,  (a)  As, 
however,  the  plaintiff  did  not  possess  a  freehold 
interest,  his  title  to  the  lands  was  only  so  far  acknow- 
ledged in  this  action,  as  to  give  him  damages  for  the 
injury  he  had  sustained,  but  not  to  restore  to  him  the 
possession  of  his  term. 

It  is  upon  this  writ,  though  apparently  so  dis- 
similar from  the  present  practice,  that  the  modern 
remedy  by  ejectment  is  founded. 

Whilst  the  feudal  system  continued  in  its  vigour, 
and  estates  for  years  retained  their  original  character, 
but  little  inconvenience  resulted  to  tenants  from  this 
imperfect  remedy.  But  when  the  feudal  policy 
declined,  and  agriculture  became  an  object  of  legis- 
lative regard,  the  value  and  importance  of  estates  of 
this  nature  considerably  increased,  and  it  was  neces- 
sary to  afford  to  lessees  for  years  a  more  effectual 
protection.  It  then  became  the  practice  for  lease- 
holders, when  disturbed  in  their  possessions,  to  apply 
to  courts  of  equity  for  redress,  and  to  prosecute  suits 
against  the  lessor  himself,  to  obtain  a  specific  per- 
formance of  the  grant,  or  against  strangers  for  per- 
petual injunctions  to  quiet  the  possession  ;  and  these 
courts  would  then  compel  a  restitution  of  the  land 
itself  to  the  party  immediately  injured,  (b) 

The  courts  of  common  law  soon  afterwards  adopted 

(a)  F.  N.  B.  505.  (6)  GUb.  Eject,  p.  2. 


w 

n 

ACTION    OF    EJECTMENT.  9 

this  method  of  rendering  substantial  justice :  not  in- 
deed by  the  invention  of  a  new  writ,  which  perhaps 
would  have  been  the  best  and  most  prudent  method, 
but  by  adapting  the  one  already  in  existence  to  the 
circumstances  of  the  times ;  and  introducing,  in  the 
prosecution  of  a  writ  of  ejectment,  a  species  of 
remedy  neither  warranted  by  the  original  writ,  nor 
demanded  by  the  declaration,  namely,  a  judgment  to 
recover  the  term,  and  a  writ  of  possession  there- 
upon. 

It  is  singular,  that  neither  the  causes  which  led  to 
this  important  change,  nor  the  principles  upon  which 
it  was  founded,  are  recorded  in  any  of  the  legal 
authorities  of  those  times.  It  is  difficult,  if  not  im- 
possible, to  ascertain  with  accuracy  the  precise  period 
when  the  alteration  itself  took  place ;  although  it  cer- 
tainly must  have  been  made  between  the  years  1 455 
and  1499,  since  in  the  former  year  it  is  said  by  one 
of  the  judges,  (a)  that  damages  only  can  be  recovered 
in  ejectment;  and  an  entry  of  a  judgment  is  still  ex- 
tant, given  in  the  latter  of  those  years,  that  the  plaintiff' 
in  ejectment  shall  recover  both  his  damages  and  his 
term.  (6)  It  is  said,  indeed,  in  argument  as  early  as 
the  year  1458,  that  the  term  may  be  recovered  in 
ejectment,  but  no  reason  is  assigned  for  the  asser- 
tion, nor  is  any  decision  upon  the  point  on  record 
until  the  time  of  the  entry  already  mentioned.  (<?) 

But,  whatever  might  be  the  causes   which   occa- 

(«)  Per  Choke  J.  Mich.  33  Hen.  (<•)  Brooke's  Ab.  tit.  Quure  cjc- 
VI.  42. 19.  tit,  Iblio  167. 

(/>)  Kast.  But.  '253,  («)  . 


10  OF    THE    ORIGIN,  &C.  OF    THE 

sioned  this  alteration,  the  effects  they  produced  were 
highly  important.  A  new  efficacy  was  given  to  the 
action  of  ejectment,  the  old  real  actions  fell  into  dis- 
use, and  in  the  subsequent  periods  of  our  history, 
the  action  of  ejectment  became  the  regular  mode  of 
proceeding  for  the  trial  of  possessory  titles. 

That  an  action  of  ejectment,  by  means  of  this 
alteration  in  its  judgment,  might  restore  termors  to 
possession  who  had  been  actually  ejected  from  their 
lands,  is  sufficiently  obvious ;  but  it  is  not  perhaps  so 
evident  how  the  same  proceeding  could  be  applicable 
to  a  disputed  title  of  freehold,  or  why,  as  soon  after 
happened,  the  freeholder  should  have  adopted  this 
novel  remedy.  No  report  of  the  case,  in  which  this 
bold  experiment  was  first  made,  is  extant ;  but  from 
the  innumerable  difficulties  which  attend  real  actions, 
it  is  not  surprising  that  the  freeholders  should  take  ad- 
vantage of  any  fiction  which  enabled  him  to  avoid 
them ;  and  as  the  Court  of  Common  Pleas  possessed 
an  exclusive  right  of  judicature  in  matters  of  real 
property,  it  is  probable  that  the  experiment  origi- 
nated in  the  Court  of  King's  Bench,  as  an  indirect 
method  of  giving  to  that  court  a  concurrent  jurisdic- 
tion with  the  Common  Pleas.  But  however  this 
may  be,  the  experiment  succeeded,  and  the  uses  of 
the  action,  as  well  as  its  nature,  were  changed. 

When  first  the  remedy  was  applied  to  the  trial  of 
disputed  titles,  the  proceedings  were  simple  and  re- 
gular, differing  but  little  from  those  previously  in 
use,  when  an  ejectment  was  brought  to  recover  the 
damages  of  an  actual  trespass.  The  right  to  the  free- 


ACTION    OF    EJECTMENT.  11 

hold  could  only  be  determined  in  an  indirect  manner. 
It  was  a  term  which  was  to  be  recovered  by  the  judg- 
ment in  the  action,  and  it  was  therefore  necessary 
that  a  term  should  be  created ;  and  as  the  injury  com- 
plained of  in  the  writ  was  the  loss  of  the  possession, 
it  was  also  necessary  that  the  person  to  whom  the 
term  was  given,  should  be  ejected  from  the  lands. 

In  order  to  obtain  the  first  of  these  requisites, 
namely,  a  term,  the  party  claiming  title  entered  upon 
the  disputed  premises,  accompanied  by  another  per- 
son, to  whom,  whilst  on  the  lands,  he  sealed  and 
delivered  a  lease  for  years.  This  actual  entry  was 
absolutely  necessary ;  for,  according  to  the  old  law 
of  maintenance,  it  was  a  penal  offence  to  convey  a 
title  to  another,  when  the  grantor  himself  was  not 
in  possession.  And,  indeed,  it  was  at  first  doubted, 
whether  this  nominal  possession,  taken  only  for  the 
purpose  of  trying  the  title,  was  sufficient  to  excuse 
him  from  the  penalties  of  that  offence,  (a) 

It  is  from  the  necessity  of  this  entry  also,  that  the 
remedy  by  ejectment  is  confined  to  cases  in  which  the 
claimant  has  a  right  to  the  possession.  When  only  a 
right  of  property,  or  a  right  of  action  remained  to  him, 
the  entry  would  be  illegal,  and  consequently  not  suf- 
ficient to  enable  the  party  making  it  to  convey  a  title 
to  his  lessee  :  and  as  the  principles  of  the  action  still 
remain  the  same,  although  its  proceedings  are  changed, 
the  right  to  make  an  entry  continues  to  be  requisite, 
though  the  entry  itself  is  no  longer  necessary. 

(a)  1  Ch.  Rep.  Append.  30. 


12  OF    THE    ORIGIN,    &C.     OF   THE 

The   lessee  of  the   claimant,   having  acquired   a 
right  to  the  possession,  by  means  of  the  lease  already 
mentioned,  remained  upon  the  land,   and  then   the 
person  who  came  next  upon  the  freehold,  animo  pos- 
sidendi,  or,  according  to  the  old  authorities,  even  by 
chance  (a),  was  accounted  an  ejector  of  the  lessee, 
and  a  trespasser  on  his  possession.     A  writ  of  tres- 
pass and  ejectment  was  then  served  upon  the  ejector 
by  the  lessee.    The  cause  regularly  proceeded  to  trial 
as  in  the  common  action  of  trespass ;  and  as  the  les- 
see's claim  could  only  be  founded  upon  the  title  of  his 
lessor,  it  was  necessary  to  prove  the  lessor's  interest 
in  the  land,  to  enable  the  plaintiff  (the  lessee)  to  ob- 
tain a  verdict.     The  claimant's  title  was  thus  indi- 
rectly determined ;  and  although  the  writ  of  posses- 
sion must  of  course  have  been  issued  in  the  plaintiff's 
name,  and  not  in  his  own,  yet  as  the  plaintiff  had 
prosecuted  the  suit   only  as  the  lessor's  friend,  he 
would  immediately  give  up  to  him  the  possession  of 
the  lands. 

In  the  infancy  of  the  experiment,  this  mode  of  pro- 
ceeding could  be  attended  with  no  ill  consequences. 
As  the  party  previously  in  possession,  must  in  con- 
templation of  the  law  be  upon  the  lands,  and  cer- 
tainly, animo  possidendi,  the  friend  of  the  claimant 
was  allowed  to  consider  him  as  an  ejector,  and  make 
him  the  defendant  in  the  action.  When,  however, 
the  remedy  became  more  generally  used,  this  sim- 
ple method  was  found  to  be  productive  of  consider- 
able evil.  It  was  easy  for  the  claimant  to  conceal  the 

(«)  1  LU.  Prac.  Reg.  673. 


ACTION    OF    EJECTMENT. 


13 


proceedings  from  the  person  in  possession,  and  to 
procure  a  second  friend  to  enter  upon  the  lands,  and 
eject  his  lessee  immediately  after  the  execution  and 
delivery  of  the  lease.  The  lessee  would  then  com- 
mence his  suit  against  this  ejector,  and  the  party  in 
possession  mightconsequently.be  ousted  of  his  lands, 
without  any  opportunity  of  defending  his  title.  To 
check  this  evil,  a  rule  of  court  was  made,  forbidding 
a  plaintiff  in  ejectment  to  proceed  against  such  third 
person,  without  giving  a  previous  notice  of  the  pro- 
ceedings to  the  party  in  possession ;  and  it  was  the 
practice  for  such  party,  on  the  receipt  of  this  notice, 
if  he  had  any  title  to  the  lands,  to  apply  to  the  court 
for  permission  to  defend  the  action;  which  appli- 
cation was  uniformly  granted,  upon  his  undertak- 
ing to  indemnify  the  defendant  (the  third  person)  from 
the  expenses  of  the  suit.  The  action  however  pro- 
ceeded in  the  name  of  such  defendant,  though  the 
person  in  possession  was  permitted  at  the  trial  to 
give  evidence  of  his  own  title. 

A  considerable  alteration  in  the  manner  of  pro- 
ceeding in  the  action  was  occasioned  by  this  rule, 
although  it  was  only  intended  to  remedy  a  particular 
evil.  It  became  the  general  practice  to  have  the 
lessee  ejected  by  some  third  person,  since  called  the 
casual  ejector,  and  to  give  the  regular  notice  to  the 
person  in  possession,  instead  of  making  him,  as  be- 
fore, the  trespasser  and  defendant.  A  reasonable 
time  was  allowed  by  the  courts,  for  the  person  in  pos- 
session, after  the  receipt  of  the  notice,  to  make  his 
application  for  leave  to  defend  the  action,  and  if  he 


14  OF    THE    ORIGIN,    &C.    OF    THE 

neglected  to  do  so,  the  suit  proceeded  against 
the  casual  ejector,  as  if  no  notice  had  been  ne- 
cessary. 

The  time  when  this  rule  was  made  is  unknown,  but 
as  the  evil  it  was  intended  to  remove  must  soon  have 
been  discovered,  it  probably  was  adopted  shortly  after 
the  remedy  grew  into  general  use.  (a)  It  seems  also 
to  have  been  the  first  instance,  in  which  the  courts  in- 
terfered in  the  practice  of  the  action,  and  is  therefore 
remarkable  as  the  foundation  of  the  fictitious  system, 
by  which  it  is  now  conducted. 

In  this  state,  with  the  exception  of  a  few  practical 
regulations,  not  necessary  to  be  here  noticed,  the 
action  of  ejectment  continued  until  the  time  of  the 
Commonwealth.  Much  trouble  and  inconvenience, 
however,  attended  the  observance  of  the  different 
formalities.  If  several  persons  were  in  possession 
of  the  disputed  lands,  it  was  necessary  to  execute 
separate  leases  upon  the  premises  of  the  different  te- 
nants, and  to  commence  separate  actions  upon  the 
several  leases.  (£)  Difficulties  also  attended  the  mak- 
ing of  entries,  and  the  action  of  ejectment  had  by  this 
time  grown  into  such  general  use,  as  to  make  these 
inconveniences  sensibly  felt.  A  remedy,  however, 
was  discovered  for  them  by  Lord  Chief  Justice  Rolle, 
who  presided  in  the  Court  of  Upper  Bench  during 
the  Protectorate;  and  a  method  of  proceeding  in 


(a)  Fairclaim  d.  Fowler  v.  Sham-         (6)  Co.  Litt.  252.  Argoll  v.  Che- 
title,  Burr.  1290—1^97.  ncy,  Palm.  402. 


ACTION    OF    EJECTMENT.  15 

ejectment  was  invented  by  him,  which  at  once  super- 
seded the  ancient  practice,  and  has  by  degrees  be- 
come fully  adapted  to  the  modern  uses  of  the  ac- 
tion, (a) 

By  the  new  system,  all  the  forms  which  we  have 
been  describing  are  dispensed  with.  No  lease  is 
sealed,  no  entry  or  ouster  really  made,  the  plaintiff 
and  defendant  in  the  suit  are  merely  fictitious  names, 
and  in  fact  all  those  preliminaries  are  now  only 
feigned,  which  the  ancient  practice  required  to  be  ac- 
tually complied  with. 

An  inquiry  into  the  numerous  regulations  which 
have  been  made  for  the  improvement  of  the  modern 
practice,  must  be  reserved  for  a  future  part  of  this 
work ;  but  it  may  be  useful  to  give  in  tLis  place  a 
brief  outline  of  the  system,  although  a  detailed  ac- 
count will  be  hereafter  necessary. 

A.  the  person  claiming  title,  delivers  to  B.  the 
person  in  possession,  a  declaration  in  ejectment,  in 
which  C.  and  D.,  two  fictitious  persons,  are  made 
respectively  plaintiff  and  defendant ;  and  in  which  C. 
states  a  fictitious  demise  of  the  lands  in  question  from 
A.  to  himself  for  a  term  of  years,  and  complains  of 
an  ouster  from  them  by  D.  during  its  continuance. 
To  this  declaration  is  annexed  a  notice,  supposed  to 
be  written  and  signed  by  D.,  informing  B.  of  the 
proceedings,  and  advising  him  to  apply  to  the  court 

(a)  Styles,  Prac.  Reg.  108.  (ed.  1657.) 


16  OP   THE    ORIGIN,    &C.    OF    THE 

for  permission  to  be  made  defendant  in  his  place,  as 
he,  having  no  title,  shall  leave  the  suit  undefended. 
Upon  the  receipt  of  this  declaration,  if  B.  do  not  ap- 
ply within  a  limited  time  to  be  made  defendant,  he  is 
supposed  to  have  no  title  to  the  premises ;  and  upon 
an  affidavit  that  a  declaration  has  been  regularly 
served  upon  him,  the  court  will  order  judgment  to 
be  entered  against  D.  the  casual  ejector,  and  pos- 
session of  the  lands  will  be  given  to  A.  the  party 
claiming  title.  When,  however,  B.  applies,  pur- 
suant to  the  notice,  to  defend  the  action,  the  courts 
annex  certain  conditions  to  the  privilege.  Four  things 
are  necessary  to  enable  a  person  to  support  an 
ejectment,  namely,  title,  lease,  entry,  and  ouster  ; 
and  as  the  three  latter  are  only  feigned  in  the  mo- 
dern practice,  C.  (the  plaintiff)  would  be  nonsuited 
at  the  trial  if  he  were  obliged  to  prove  them.  The 
courts  therefore  compel  B.  if  made  defendant,  to  enter 
into  a  rule,  generally  termed  the  consent-rule,  by 
which  he  undertakes,  that  at  the  trial  he  will  confess 
the  lease,  entry,  and  ouster  to  have  been  regularly 
made,  and  rely  solely  upon  the  merits  of  his  title ; 
and,  lest  at  the  trial  he  should  break  this  engagement, 
another  condition  is  also  added,  that  in  such  case,  he 
shall  pay  the  costs  of  the  suit,  and  shall  allow  judg- 
ment to  be  entered  against  D.  the  casual  ejector. 
These  conditions  being  complied  with,  the  declara- 
tion is  altered,  by  making  B.  the  defendant  instead  of 
-D.,  and  the  cause  proceeds  to  trial  in  the  same  man- 
ner as  in  other  actions. 

The  advantages  resulting  from  this  method  are  ob- 


ACTION    OF    EJECTMENT.  17 

vious  :  the  claimant  is  exempted  from  the  observance 
of  useless  forms,  and  the  tenant  admits  nothing 
which  can  prejudice  the  merits  of  the  case. 

It  could  not  indeed  be  expected  that  a  change  so 
extensive  should,  in  the  first  instance,  be  entirely 
free  from  defects,  nor  that  it  would  not,  like  other 
innovations,  occasion  some  inconvenience  when  first 
introduced.  For  a  few  years  after  its  invention, 
the  courts  seem  occasionally  to  have  been  confused 
between  the  ancient  and  modern  systems,  and  not  to 
have  established,  so  distinctly  as  might  have  been  de- 
sired, the  principles  which  were  to  regulate  the  pro- 
ceedings they  had  so  newly  adopted.  The  action  has, 
however,  now  attained  a  considerable  degree  of  per- 
fection. Its  principles  are  clearly  understood,  and  its 
practice  is  reduced  to  a  regular  and  settled  system. 
The  legislature  has  frequently  interfered  to  correct  its 
deficiencies.  The  courts  continue  to  regard  it  with 
great  liberality ;  and  the  remedy  by  ejectment  is  at  the 
present  time,  a  safe  and  expeditious  method  of  trying 
possessory  titles,  unembarrassed  by  the  difficulties 
attendant  on  real  actions,  and  well  adapted  to  the 
purposes  of  substantial  justice. 


18 


CHAPTER  If. 


Of  what  things  an  Ejectment  will  lie,  and  how  they 
are  to  be  described. 


BY  the  common  law,  an  ejectment  will  not  lie  for 
any  thing,  whereon  an  entry  cannot  be  made,  or  of 
which  the  sheriff  cannot  deliver  possession;  or,  in 
other  words,  it  is  only  maintainable  for  corporeal 
hereditaments.  Thus  an  ejectment  will  not  lie  for 
a  rent,  an  advowson,  a  common  in  gross,  or  pur  cause 
de  vicinage,  or  any  other  thing  which  passes  only  by 
grant.  Tithes,  indeed,  though  an  incorporeal  inherit- 
ance, may  be  recovered  by  this  action,  but  the  right 
of  maintaining  an  ejectment  for  them,  does  not  arise 
from  the  common  law,  but  is  given  by  the  provisions 
of  the  statute  32  Hen.  VIII.  c.  7. 

It  was  formerly  holden  that  an  ejectment  did  not 
lie  for  a  chapel,  though  a  corporeal  hereditament, 
because  it  was  res  sacra,  and  therefore  not  demisable; 
but  this  doctrine  is  now  exploded,  though  in  point 
of  form,  a  chapel  should  still  be  demanded  as  a  mes- 


OF    WHAT    THINGS    AN    EJECTMENT    WILL    LIE.       19 

suage.  (ct)  A  church  may  be  also  recovered  in  an 
ejectment  when  so  demanded ;  (b)  and  it  is  in  one 
case  said  in  argument,  that  after  collation,  ejectment 
will  lie  for  a  prebendal  stall,  (c) 

A  common  appendant  or  appurtenant  may  be 
recovered  in  an  ejectment,  brought  for  the  lands  to 
which  it  is  appendant  or  appurtenant,  provided  such 
right  of  common  be  mentioned  in  the  description  of 
the  premises ;  because  he  who  has  possession  of 
the  land  has  also  possession  of  the  common;  and 
the  sheriff  by  giving  possession  of  the  one,  executes 
the  writ  as  to  the  other.  But  it  may  be  prudent  to 
state  in  the  description,  that  the  common  so  claimed 
is  a  common  appendant  or  appurtenant,  although 
it  has  been  held  after  verdict,  that  an  ejectment  for 
lands  and  also  for  "  common  of  pasture,''  generally, 
is  sufficient,  (tf) 

An  ejectment  will  also  lie  for  a  boilary  of  salt, 
although  by  the  grant  of  a  boilary  of  salt  the  grantee 
is  only  entitled  to  a  certain  proportion  of  the  number 
of  buckets  of  salt  water  drawn  out  of  a  particulor 
salt-water  well ;  for  by  the  grant  of  a  boilary  of  salt 
the  soil  shall  pass,  inasmuch  as  it  is  the  whole  profit 
of  the  soil,  (e) 


(a)  Harpur's  case,  11  Co.  25,  (b)  (d)  Baker  v.  Roe,  Cas.  Temp. 
Thyn  v.  Thyn,  Styles,  101.    Doc.  Hard.   127.       Newman    t-.    Hold- 
Plac.  291.  myfast,  Stran.  54. 

(b)  HiDingsworth    v.    Brewster,  (e)  Smith  v.   Barrett,  Sid.   161. 
Salk.  256.  S.    C.     1    Lev.     114.     Co.    Litt. 

(c)  The  King  t;.  the   Bishop  of  4,  (l>). 
London,  1  Wils.  11.  14. 


20  OF    WHAT    THINGS 

Upon  the  same  principle  an  ejectment  may  be 
maintained  for  a  coal  mine,  for  it  is  not  to  be  con- 
sidered as  a  bare  profit  apprender,  but  as  compre- 
hending the  ground  or  soil  itself,  which  may  be 
delivered  in  execution  ;  and  though  a  man  may  have 
a  right  to  the  mine  without  any  title  to  the  soil,  yet 
the  mine  being  fixed  in  a  certain  place,  the  sheriff 
has  a  thing  certain  before  him  of  which  he  can  deliver 
possession,  (a) 

When  a  grant  of  mines  is  so  worded  as  not  to  ope- 
rate as  an  actual  demise,  but  only  as  a  licence  to  dig 
search  for  and  take  metals  and  minerals  within  a 
certain  district  during  the  term  granted ;  it  seems 
that  a  party  claiming  under  such  a  grant,  and  who 
shall  open  and  work  and  be  in  actual  possession  of 
any  mines,  may  if  ousted  maintain  ejectment  in 
respect  of  them ;  but  he  cannot  maintain  ejectment 
either  in  respect  of  mines  within  the  district,  which 
he  has  not  opened,  or  which,  having  opened,  he  has 
abandoned. (6) 

In  the  old  cases  it  is  holden,  that  an  ejectment 
will  not  lie  for  a  fishery,  because  it  is  only  a  profit 
apprender;  (c)  but  it  is  said  by  Ashhurst,  J.  in  the 
case  of  The  King  v.the  Inhabitants  of  Old  Arlesford, 
(d)  '•  There  is  no  doubt  but  that  a  fishery  is  a  tene- 


(a)  Comyn  v.  Kineto,  Cro.  Jac.  (c)     Molineaux    v.    Molineaux, 

150.     Comyn    v.  Wheatly,    Noy.  Cro.  Jac.  144.     Herbert  v.  Laugh- 

121-  lyn,  Cro.   Car.  492.      Waddy   v. 

(6)  Doe.  d.  Hanley  v.  Wood,   2  Newton,  8  Mod.  275—277. 

B.  &  A.  724.  Crocker  v.  Fothergill,  (d)  I  T.  R.  358. 
2  B.  &  A.  652. 


AN    EJECTMENT   WILL    LIE.  21 

ment;  trespass  will  lie  for  an  injury  to  it,  and  it  may 
be  recovered  in  ejectment." 

But  an  ejectment  will  not  lie  for  a  watercourse 
or  rivulet,  though  its  name  be  mentioned,  because  it 
is  impossible  to  give  execution  of  a  thing  which  is 
transient,  and  always  running.  When,  however, 
the  ground  over  which  the  rivulet  runs,  is  the  pro- 
perty of  the  claimant,  the  rivulet  may  be  recovered, 
by  laying  the  action  for  tfso  many  acres  of  land 
covered  with  water."  (a)  An  ejectment  may  be  main- 
tained for  a  pool,  or  pit  of  water,  because  those 
words  comprehend  both  land  and  water,  (b) 

The  owner  of  the  soil  may  maintain  an  ejectment 
for  land,  which  is  part  of  the  king's  highway;  because, 
though  the  public  have  a  right  to  pass  over  it,  yet  the 
freehold  and  all  the  profits  belong  to  the  owner.  He 
must,  however,  recover  the  land,  and  the  sheriff  give 
possession  of  it,  subject  to  the  public  easement,  (c) 

An  ejectment  will  lie  pro  primd  tonsurd:  that  is 
to  say,  if  a  man  has  a  grant  of  the  first  grass  which 
grows  on  the  land  every  year,  he  may  maintain  eject- 
ment against  him  who  withholds  it  from  him.  (d)  So 
also  a  demise  of  the  hay-grass  and  after-math  is  suffi- 
cient to  support  an  ejectment,  (e)  And  the  princi- 
ple seems  to  be  this,  that  the  parties  in  these  cases, 


(a)  Challenor  v.  Thomas,  Yelv.  (<f)  Ward  v.  Petifer,  Cro.  Car. 

143.  362. 

(6)  Ibid.  Co.  Litt  5,  (b.)  (e)  Wheeler  v.   Toulson,  Hard. 

(c)  Goodtitle  d.  Chester  v.  Alker,  330. 
Bur.  133.  145. 


22  OF    WHAT    THINGS 

being  entitled  to  all  the  profits  of  the  land,  for  the 
time  being,  are  entitled  also  for  the  same  time  to  the 
land  itself;  and  no  man  can  enter  thereon  whilst  they 
are  so  entitled,  without  being  a  trespasser.  But  the 
ejectment  should  not  be  brought  for  the  land  generally, 
but  for  the  first  grass  or  after-math  thereof,  as  the 
case  may  be ;  although  where  the  demise  was  for  so 
many  acres  of  pasture  land,  it  was  held  sufficient  for 
the  lessor  of  the  plaintiff  in  the  first  instance  to  show 
that  he  was  entitled  to  the  primd  tonsurd  thereof, 
because  the  first  grass  being  the  most  signal  profit, 
the  freehold  of  the  land  shall  be  esteemed  to  be  in 
him  who  has  it,  until  the  contrary  is  shown,  (a) 

A  right  to  the  herbage  will  also  be  sufficient  to 
support  an  ejectment,  because  he  who  has  a  grant 
of  the  herbage  has  a  particular  interest  in  the  soil, 
although  by  such  grant  the  soil  itself  does  not  pass. 
But  the  ejectment  should  be  for  the  herbage  of  the 
land,  and  not  for  the  land  itself.  (6) 

In  like  manner  an  ejectment  will  lie  for  the  pasture 
of  a  hundred  sheep,  (c) 

.-.-».•  /  ,• 

But  a  right  to  the  pannage  is  not  enough,  because 
pannage  is  only  the  mast  which  falls  from  the  trees, 
and  not  part  of  the  soil  itself,  (d) 

With   respect   to   the   manner  in  which  the   dis- 

(a)  Rex  r.  Inhabitants  of  Stoke,  (c)  Anon.  2  Dal.  95. 

2T.R.451.  (d)  Pemble  v.    Sterne,     1  Lev. 

(A)  Wheeler  t>.  Toulson,   Hard.  212,3.  S.C.  iSid.  416. 
330. 


AN    EJECTMENT    WILL    LIE.  *& 

puted  premises  should  be  described  in  an  ejectment, 
no  determinate  rule  exists :  nor  is  it  easy  to  discover 
from  the  adjudged  cases,  any  principle  which  can 
guide  us  on  the  subject.  It  is  very  frequently  said 
in  general  terms,  that  the  description  shall  be  suffi- 
ciently certain  ;  but  the  degree  of  certainty  required, 
particularly  in  the  more  ancient  cases,  seems  to 
depend  upon  caprice  rather  than  principle.  In  the 
earlier  stages  of  the  remedy,  when  ejectments  were 
compared  to  real  actions,  and  arguments  were  drawn 
from  analogy  with  them,  a  practice  which  obtained 
until  after  the  reign  of  James  I.,  much  greater  cer- 
tainly was  required  than  is  now  necessary;  and  it 
appears,  that  when  the  action  was  first  invented,  as 
much  certainly  was  requisite  as  in  a  pr&cipe  quod 
reddat.  («)  The  courts,  indeed,  soon  relaxed  this 
severity,  and  allowed  many  descriptions  to  be  suffi- 
cient in  an  ejectment,  which  would  have  been  held 
too  uncertain  in  a  prtecipe ;  as,  for  instance,  an 
ejectment  for  a  hop-yard  was  held  good;  so  also 
for  an  orchard,  though  in  a  pracipe  it  should  be 
demanded  as  a  garden ;  (£)  yet  notwithstanding  this 
alteration,  it  was  considered  an  established  principle, 
until  within  the  last  sixty  years,  that  the  description 
must  be  so  certain  as  to  enable  the  sheriff  exactly 
to  know,  without  any  information  from  the  lessor 
of  the  plaintiff,  of  what  to  deliver  possession,  (c) 
Amongst  other  salutary  regulations,  however,  which 
the  wisdom  of  modern  times  has  introduced  into  this 

(a)  Macdunoch  v.  Stafford,  2  Roll,  ston,  Cro.  Jac,654.  S.  C.  Palm.  337. 

Rep.  166.  (c)  Bindover    v.    Sindercome,  2 

6)  Wright  v.  Wheatley,  Noy.37.  Raym.  1470,  and  the  cases  there 

S.  C.Cro.  Eliz.  854,  Royston  v.  Eccle-  cited. 


24  OF    WHAT    THINGS 

action,  the  abolition  of  the  above-mentioned  maxim 
may  be  reckoned  ;  and  it  is  now  the  practice  for  the 
sheriff  to  deliver  possession  of  the  premises  reco- 
vered, according  to  the  directions  of  the  claimant, 
who  therein  acts  at  his  own  peril,  (a) 

Few  cases  are  to  be  found  in  the  modern  books, 
wherein  points  respecting  the  certainty  of  descrip- 
tion have  arisen ;  and  the  authority  of  the  old  cases 
is  very  doubtful.  The  degree  of  certainty  formerly 
required  was  much  greater  than  is  now  necessary, 
and  it  is  not  improbable  that  many  of  the  old  de- 
cisions would  be  over-ruled,  should  they  again  come 
under  the  consideration  of  the  courts.  (6) 

Lands  will  be  sufficiently  described  by  the  pro- 
vincial terms  of  the  counties  in  which  they  lie.  Thus 
an  ejectment  may  be  maintained  for  "  five  acres  of 
alder  carr  "  in  Norfolk  : — alder  carr  in  that  county 
signifying  land  covered  with  alders.  So  also  in 
Suffolk,  for  a  beast  gate;  and  in  Yorkshire,  for 
cattle  gates,  (c) 

The  same  principle  applies  to  ejectments  in  Ire- 
land; and  terms  used  in  that  country  will  be  suffi- 
ciently certain,  when  writs  of  error  are  brought 
therefrom  in  this  kingdom.  Thus  an  ejectment  will 
lie  in  Ireland,  for  a  township,  for  a  kneave  (d)  or 


(a)  Cottingham  v.  King,  Burr .623.  1063.  Bennington  v.  Goodtitle,  ib . 

630.  Connor  v.  West,  Burr.  2672.  1084. 

(&)  St.  John  v.  Comyn,  Yelv.  117.  (d)  Cottingham u.King,  Burr.  623, 

Cottingham  v.  King,  Burr.  623.  30. 

(c)  Barnes   v.  Peterson,    Stran. 


AN    EJECTMENT    WILL    LIE. 

quarter  of  land,  or  for  so  many  acres  of  bog  or  of 
mountain,  (a)  the  word  mountain  being  in  that  king- 
dom rather  a  description  of  the  quality,  than  the 
situation  of  land.  (6) 

But  an  ejectment  in  England  for  a  hundred  acres 
of  mountain,  or  a  hundred  acres  of  waste,  has  been 
held  to  be  bad  for  uncertainty,  because  both  waste 
and  mountain  comprehend  in  England  many  sorts 
of  land,  (c) 

It  is  no  objection  to  a  description  that  the  premises 
are  twice  demanded  in  the  same  demise,  (d) 

An  ejectment  will  not  lie  for  a  tenement,  because 
many  incorporeal  hereditaments  are  included  in  that 
appellation,  (e)  and  therefore  the  description  is  not 
certain  enough ;  nor  will  an  ejectment  lie  for  a  mes- 
suage, or  tenement,  for  the  signification  of  the  word 
tenement  being  more  extensive  than  that  of  the  word 
messuage,  it  is  not  sufficiently  certain  what  is  in- 
tended to  be  demanded  in  the  ejectment.  (/)  It  is 
also  holden  that  an  ejectment  will  not  lie  for  a  mes- 
suage and  tenement,  (g) 

(a)    Barnes    v.   Peterson,  Stran.  834.  Coplestonv.  Piper,  Ld.  Raym. 

1063.     Bennington  v.  Goodtitle,  ib.  191. 

1084.  (/)  Ashworthv.  Stanley,  Styl.  364. 

(6)  Kildare  v.  Fisher,  Stran.  71.  Wood  v.   Payne,   Cro.   Eliz.   186. 

vide  cont.     Macdonnogh  v.  Stafford,  Rochester  v.  Rickhouse,  Pop.  203. 

Palm.  100.   S.  C.  2  Roll.  Rep.  189.  (g)  Doe  d.  Bradshaw  v.  Plowman. 

St.  John  v.  Comyn,  Yelv.  117.  1  East.  441,  and  the  cases  there 

(c)  Hancock  v.  Price,  Hard.  57.  cited. — In  the  case  of  Goodright  </• 

(f)  Warren  w.  Wakely,  2  Roll.  Welch  v.  Flood,  (3  Wil*.  23,)   in 

Rep.  482.  which  a  motion  was  made  to  arrest 

(f)  Goodtitle  v.  Walton,  Stran.  the  judgment,  because  the  plaintiff 


26  OF    WHAT    THINGS 

But  an  ejectment  for  a  messuage  or  tenement,  with 
other  words  expressing  its  meaning,  is  good,  as  a 
messuage  or  tenement  called  the  Black  Swan  ;  for 
the  addition  reduces  it  to  the  certainty  of  a  dwelling- 
house,  (a) 

So  also  an  ejectment  for  a  messuage  or  burgage 
is  good ;  because  both  signify  the  same  thing  in  a 
borough,  (b) 


had  declared  of  a  messuage  or  tene- 
ment, the  Court  endeavoured  to  get 
over  the  objection,  and  took  time 
for  consideration,  but  ultimately 
thoughtthemselves  bound  by  the  ad- 
judged cases,  and  reluctantly  ar- 
rested the  judgment.  Afterwards, 
in  Doe  d.  Stewart  v.  Denton,  (IT. 
R.  11,)  on  a  similar  application, 
where  the  plaintiff  had  declared  for 
a  messuage  and  tenement,  the  Court 
refused  to  grant  the  rule,  Duller,  J. 
saying,  he  remembered  a  case  where 
a  messuage  or  tenement  had  been 
held  sufficiently  certain.  But  this 
case  was  afterwards  over-ruled,  in 
Doe  d.  Bradshaw  v.  Plowman,  (1 
East.  441,)  "for  that  it  passed 
by  surprise,  and  was  not  law,  being 
contrary  to  adjudged  cases."  -The 
point  is  therefore  now  at  rest,  al- 
though from  the  cases  of  Goodtitle 
d.  Wright  v.  Otway,  (3  East.  357,) 
and  Doe  d.  Laurie  v.  Dyball,  (1  M. 
&  P.  330.  and  8  B.  &  C.  70.)  the 
defendant  is  precluded  from  deriv- 
ing any  advantage  from  such  error 
in  description.  In  the  former  case, 
the  plaintiff  had  declared  for  a  mes- 
suage and  tenement,  and  the  ver- 
dict was  entered  generally  ;  but  the 


Court  permitted  the  lessor  (pending 
a  rule  nisi  to  arrest  the  judgment 
for  the  uncertainty)  to  enter  the 
verdict  according  to  the  Judges' 
notes  for  the  messuage  only,  and  that 
without  releasing  the  damages.  In  the 
latter  case,  the  declaration  was  for 
twenty  messuages,  twenty  tenements 
&c. ;  and  the  judgment  being  entered 
generally  for  the  plaintiff,  the  de- 
fendant brought  a  writ  of  error  in 
the  King's  Bench,  pending  which 
writ  the  Court  of  Common  Pleas  al- 
lowed the  record  to  bs  amended,  by 
striking  out  the  words  "  twenty  te- 
nements ;"  and  the  Court  of  King's 
Bench  in  the  following  term,  (the 
record  I  presume  not  having  been 
amended)  gave  judgment  for  the 
defendant  in  error  on  this  ground, 
that  if  the  same  count  contains  two 
demands  or  complaints,  for  one  of 
which  only  an  action  lies,  all  the 
damages  shall  be  referred  to  the 
good  cause  of  action,  although  secus 
if  in  separate  counts. 

(a)  Burbury  v.  Yeomans,  1  Sid. 
295. 

(6)  Danvers  v.  Wellington,  Hard. 
173.  Rochester  v.  Ilickhouse,  Pop. 
203. 


AN    EJECTMENT    WILL    LIE.  27 

An  ejectment  for  four  corn  mills,  without  saying  of 
what  kind,  whether  wind-mills  or  water-mills,  is 
good ;  for  the  precedents  in  the  register  are  so.  (a) 

An  ejectment  will  lie  for  a  stable  and  cottage,  (6) 
and  also  for  a  house ;  though  in  a  pr&cipe  it  ought 
to  be  demanded  by  the  name  of  a  messuage,  (c] 

Ejectment  of  a  place  called  a  passage-room  is  cer- 
tain enough,  (d)  So  also  of  a  room,  and  of  a  chamber 
in  the  second  story,  (e)  In  like  manner  it  has  been 
held  that  an  ejectment  for  u  part  of  a  house  in  A"  is 
sufficiently  certain,  (f)  So  also  of  "  a  certain  place 
called  the  vestry."  (g) 

It  has  formerly  been  holden  that  an  ejectment  for 
a  kitchen  could  not  be  supported ;  because,  although 
the  word  be  well  enough  understood  in  common 
parlance,  yet,  as  any  chamber  in  a  house  may  be 
applied  to  that  use,  the  sheriff  has  not  certainty 
enough  to  direct  him  in  the  execution,  and  the 
kitchen  may  be  changed  between  judgment  and  exe- 
cution ;  but  this  reasoning  does  not  correspond  with 
the  maxims  of  the  present  day.  (h) 

An  ejectment  will  not  lie'for  a  close,  (z)  nor  for  the 

(a)     Fitzgerald    v.  Marshall,   1  («)  Anon.  3  Leon.  210. 

Mod.  90.  (/)  Sullivan  v.  Seagrave,  Stran. 

(6)  Hill  v.  Giles,  Cro.  Eliz.  818.  695.      Rawson  v.  Maynard,  Cro. 

Lady    Dacres*    case,   1    Lev.  58.  Eliz.  286. 

Ilamoiid  v.  Ireland,  Sty.  215.  (g)  Hutchinson  v.  Puller,  3  Lev. 

(c)   Royston  v.  Eccleston,  Cro.  95. 

Jac.  654.  S.  C.  Palm.  337.  (A)  Ford  v.  Lerke,  Noy.  109. 

(rf)  Bindovcr  v.  Sindercombe,  Ld.  (i)  Savel's  case,  11  Co.  55  llam- 

Rayra.  1170.  inond   v.   Savel,  1    Rol.   Rep.   55. 


28  OF    WHAT    THINGS 

third,  or  other  part  of  a  close,  nor  for  a  piece  of  land, 
unless  the  particular  contents  or  number  of  acres  be 
specified,  (a)  From  the  old  authorities,  it  seems  also 
formerly  to  have  been  holden,  (though  the  point  is 
certainly  somewhat  obscure,)  that  the  addition  of  the 
name  of  the  close,  without  mention  of  the  number  of 
acres,  would  be  bad ;  though  such  a  description,  it  is 
conceived,  would  now  be  deemed  sufficiently  cer- 
tain, (b) 

In  ejectment  for  land,  the  particular  species  should 
be  mentioned  in  the  description,  whether  pasture, 
meadow,  &c.  because  land,  in  its  legal  acceptation, 
signifies  only  arable  laud,  (c) 

An  ejectment  for  ten  acres  of  underwood  has  been 
held  good ;  (d}  because  underwood  is  so  well  under- 
stood in  law,  that  the  sheriff  has  certainty  enough  to 
direct  him  in  the  execution. 

"  Fifty  acres  of  gorse  and  furze"  («)  has  been  held 
sufficiently  certain  in  an  ejectment,  without  specifying 
the  particular  quantity  of  each  :  so  also  "  fifty  acres 
of  furze  and  heath,"  and  "  fifty  acres  of  moor  and 
marsh."  (/) 


Knight  v.  Syms,  Salk.  254.    Joans  v.    Cleabourne,    Cro.    Eliz.     339. 

v.  Hoel,  Cro.  Eliz.  235.  Wykes  v.  Sparrow,  Cro.  Jac.  435. 

(a)  Palmer's  case,  Owen  18,  Mar-  (c)   Massey  v.  Rice,  Cowp.  346. 

tyn  v.  Nichols,  Cro.  Car.  573.   Jor-  349.     Savel's  case,  11  Co.  55. 

dan  v.  Cleabourne,  Cro.  Eliz.  339.  (d)  Warren  v.  Wakeley,  2  Roll. 

I'emble  v.  Sterne,  I  Lev.  213.  Rep.  482. 

(6)  Lady  Dacres'  case,  1  Lev.  (e)  Fitzgerald  v.  Marshall,  1  Mod. 

58.  Savel's  case,  11  Co.  55.  Knight  90. 

t-.  Syms,  1  Salk.  254.  Roystou  v.  (/)  Connor  v.  West,  Burr.  2672. 
J'.ccleston,   Cro.  Jac.  654.  Jordan 


AN    EJECTMENT    WILL    LIE.  29 

An  ejectment  for  "  ten  acres  of  pease  "  has  been 
held  to  be  certain  enough,  as  signifying  the  same 
with  ten  acres  of  land  covered  with  pease,  (a) 

It  seems  that  an  ejectment  may  be  brought  for  a 
manor,  or  a  moiety  of  a  manor,  generally,  without 
any  description  of  the  number  of  acres,  or  species  of 
land  contained  therein,  and  that  under  such  general 
description  the  jury  may  find  the  verdict  for  the  plain- 
tiff, for  a  messuage,  or  for  so  many  acres  "  parcel  of 
the  said  manor,"  and  for  the  defendant,  for  the  resi- 
due of  the  manor;  but  it  is  said  in  the  old  cases,  not 
to  be  safe  to  bring  an  ejectment  for  a  manor  without 
describing  the  quantity  and  species  of  the  land.  (6) 

When  an  ejectment  is  brought  for  tithes,  (c)  the 
particular  species  of  tithe  demanded  should  be  speci- 
fied in  the  declaration,  as  of  hay,  wheat,  &c.  or  the 
description  will  be  bad  for  uncertainty ;  (d)  but  it  is 
not  also  necessary  to  mention  the  precise  quantity  of 
each  species,  because  tithe  is  in  its  nature  uncertain, 
the  quantity  entirely  depending  on  the  fruitfulness  of 
the  season,  and  it  is  therefore  enough  to  say,  "  of 
certain  tithes  of  hay,  wool,  8cc."  (e) 

(a)  Odingsall    v.    Jackson,    1      appertaining,"  for  that  the  plaintiff 
Brown,  149.  could  not  have  a  writ  of  haberefa- 

(b)  Warden's  case,  Het.  146.  Cole  cias  po&sessionem  of  the  tithes  only ; 
t?.  Aylott,  Litt.  Rep.  299. 301.  Hems  but  the  objection   was  over-ruled. 
v.  Stroud,  Latch.  61.  Baldwin  v.  Wine,  Cro.  Car.  301. 

(c)  It  was  once  contended,  that         (d)  Harpur's  case,  11  Co.  25.  (6) 
in  an  ejectment  for  tithes,  the  eject-  Worrall  v.  Harper,  1  Roll.  Rep.  65. 
tion  should  be  laid,  "  of  the  rectory,  68.     Dyer,  84,  5. 

or  chapel,  and  of  the  tithes  thereunto         (e)  Anon.  Dyer,  116,  (6.) 


30        OF    WHAT    THINOS    AN    EJECTMENT    WILL    LIE. 

In  an  old  case,  where  the  plaintiff  declared  on  a 
lease  for  tithes  in  R.  belonging  to  the  rectory  of  D., 
and  that  the  defendant  entered  upon  him,  and  took 
such  tithes  severed  from  the  nine  parts  in  R.,  without 
saying  that  the  tithes  so  taken  belonged  to  the  rectory 
of  D.,  the  description  was  held  ill,  because  it  did  not 
confine  the  ouster  to  the  tithes  laid  in  the  declaration  ; 
for  the  defendant  might  have  ousted  the  plaintiff  of 
tithes  in  R.,  which  did  not  belong  to  the  rectory  of 


In  an  ejectment  brought  in  the  county  of  Durham, 
the  plaintiff  declared  "  for  coal-mines  in  Gateside" 
generally,  not  specifying  the  particular  number  ;  and 
it  appearing  upon  a  writ  of  error,  that  such  was  the 
customary  mode  of  declaring  in  the  county,  the  judg- 
ment for  the  plaintiff  was  affirmed.  (#) 

If  a  person  eject  another  from  land,  and  build 
thereon,  it  is  sufficient  if  the  owner  bring  his  eject- 
ment for  the  land,  without  mentioning  the  building, 
except  where  the  building  is  a  messuage,  and  then 
perhaps  it  ought  to  be  particularly  named,  (c) 

(a)  Baldwin  v.  Wine,  W.  Jones,  Mod.    143.      S.  C.  1   Show.  364. 

321,    tamen  qtuere,  et  vide  Good-  S.  C.  Salk.  255.     S.  C.  Carth.  277. 

right  d.  Smallwood  v.  Strother,  Blk.  S.  C  .  Comb.  201. 

706.  (c)  Goodtitle  d.  Chester  v.  Alker, 

(6)  Whittingham  v.  Andrews,  4  Burr.  133.  144. 


CHAPTER  III. 


Of  the  Title  necessary  to  support   the  Action   of 
Riectment. 


Ejectment 


THE  modern  action  of  ejectment  is  the  most 
simple  and  ready  mode  of  trying  every  species  of 
possessory  title ;  and  nearly  all  the  minute  and  per- 
plexing distinctions  with  which  our  laws  of  real 
property  abound,  are  to  be  found  in  cases  where 
this  form  of  action  has  been  adopted.  A  full  inquiry 
into  all  the  points  discussed  in  these  cases  would 
render  this  treatise  far  too  voluminous  for  practical 
purposes,  and  indeed  would  be  foreign  to  its  design, 
which  is  to  treat  of  the  remedy  by  ejectment,  and 
not  of  the  laws  of  real  property ;  whilst  on  the  other 
hand,  an  enumeration  only  of  the  different  titles 
sufficient  to  support  an  ejectment,  would  be  of  little 
service  either  to  the  student  or  practitioner.  It  is 
intended,  therefore,  to  keep  a  middle  course;  first  dis- 
cussing the  general  principles  upon  which  the  remedy 
is  founded,  and  afterwards  stating  in  succession  the 
various  persons,  who,  from  the  nature  of  their  several 
estates,  are  entitled  to  maintain  the  action ;  pointing 
out  the  leading  cases  under  each  separate  title,  but 


32  OF    THE    TITLE,    &C.    IN    THE 

leaving  the  more  minute  distinctions  to  those  publi- 
cations, which  treat  expressly  of  the  laws  of  real 
property. 

As  the  party  in  the  possession  of  property  is  pre- 
sumed to  be  the  owner,  until  the  contrary  is  proved, 
it  is  necessary  for  a  claimant  in  ejectment  to  show  in 
himself  a  good  and  sufficient  title  to  the  lands,  to 
enable  him  to  recover  them  from  the  defendant.  He 
will  not  be  assisted  by  the  weakness  of  the  defend- 
ant's claim.  The  possession  of  the  latter  gives  him 
a  right  against  every  man  who  cannot  establish  a  title; 
and  if  he  can  answer  the  case  on  the  part  of  the  claim- 
ant, by  showing  the  real  title  to  the  land  to  be  in 
another,  it  will  be  sufficient  for  his  defence,  except  in 
those  cases  in  which  the  relationship  of  landlord  and 
tenant  subsists  between  the  parties,  and  the  defendant 
is  estopped  from  disputing  his  landlord's  title,  (a) 
although  he  does  not  pretend  that  he  holds  the  lands 
with  the  consent,  or  under  the  authority  of  the  real 
owner,  (b) 

In  order  also  to  enable  a  claimant  to  support  an 
action  of  ejectment,  he  must  be  clothed  with  the  legal 
title  to  the  lands,  (c)  No  equitable  title  will  avail. 
And  this  principle  is  so  fixed  and  immutable,  that  a 
trustee  may  maintain  ejectment  against  his  own  cestui 
que  trust,  (d}  and  an  unsatisfied  term  outstanding  in 

(a)  Vide  post,  chap.  10.  T.  R.  43.  47.     Doe  d.  Da  Costa  v. 

(6)  Roe  d.  Haldane  v.  Harvey,  4  Wharton,  8  T,  R.  2.     Doerf.  Blake 

Burr.  2484.  Doe  d.  Crisp  v.  Barber,  v.  Luxton,  6  T.  R.  289. 

2  T.  R.  749.  (rf)  Roe  rf.  Reade  v.  Read,  8  J . 

(f)  Goodtitle  d.  Jones  v.  Jones,  7  R.  1 18.  123. 


ACTION    OF    EJECTMENT.  33 

trustees  will  bar  the  recovery  of  the  heir  at  law,  even 
though  he  claim  only  subject  to  the  charge,  (a)  In 
the  time  of  Lord  Mansfield,  indeed,  the  Court  of 
King's  Bench  adopted  a  different  principle,  and 
exercised  a  species  of  equitable  jurisdiction  in  this 
action.  Thus  a  mortgagee  was  permitted  to  main- 
tain ejectment  against  a  tenant,  claiming  under  a 
lease  granted  prior  to  the  mortgage,  provided  he 
gave  notice  to  the  tenant  that  he  did  not  intend 
to  disturb  the  possession,  but  only  to  get  into  the 
receipt  of  the  rents  and  profits  of  the  estate;  (b) 
the  legal  estate  of  a  trustee  was  not  allowed  to  be  set 
up  against  the  cestui  que  trust ;  (c)  an  agreement 
for  a  lease  was  held  tantamount  to  a  lease;  (d) 
and  a  reversioner  was  allowed  to  recover  his  rever- 
sionary interest,  subject  to  a  lease  and  immediate 
right  of  possession  in  another,  (e)  But  these  cases 
have  long  been  overruled,  and  the  clearness  and 
certainty  of  the  principle  since  adopted,  amply  com- 
pensate for  the  partial  inconvenience  it  may  at  times 
occasion. 

The  claimant  must  also  have  a  right  to  the  posses- 
sion; that  is  to  say,  he  must  have  a  right  of  entry  upon 
the  lands  at  the  time  of  the  demise  in  the  declaration. 
And  whatever  takes  away  this  right  of  entry  or  posses- 

(a)  Doe  d.  Hodson  v.  Staple,  2jT.  684.    Doe  d.  Gibbon  v.  Pott,  Doug. 

R.  684.  710.  721.  et  vide  Gates  d.  Wigfall 

(6)  Keechd.  Warner.  Hall,  Doug.  v.  Brydon,  Burr.  1895.  1901. 

21.    Moss  v.  Gallimore,  Doug.  279.  (d)  Weakley  d.  Yea  v.  Bucknell, 

B.  N.  P.  96.  Cowp.  473. 

(r)  Lade  v.  Holford,  B.  N.  P.  110.  (e)  Per  Buller,  J.  in  Doe  d.  Bris- 

S.  C.  Burr.  1416.  S.  C.  Blk.  428.  towv.Pegge,  1 T.  R.  759,  (in  notis.) 
Doe  d.  Hodson  v.  Staple,  2  T.  R. 

U 


34  OF    THE    TITLE    &C.    IN    THE 

sion,  and  turns  the  same  into  aright  of  action,  will  also 
deprive  the  claimant  of  his  remedy  by  ejectment,, 
although  the  legal  title  still  remains  in  him.  But  if 
he  be  entitled  to  the  possession  at  the  time  the  demise 
is  laid,  it  will  be  sufficient,  although  such  right  of  pos- 
session be  divested  before  trial;  for  the  action  of 
ejectment  is  intended  to  give  the  party  compensation 
for  the  trespass,  as  well  as  to  enable  him  to  recover 
possession  of  the  land  ;  and  he  has  a  right  to  proceed 
for  such  trespass,  although  his  right  to  the  possession 
should  cease,  (a) 

The  origin  of  the  principle  that  the  lessor  must 
have  a  right  of  entry,  has  already  been  considered,  (&) 
and  we  must  now  notice  the  several  ways  by  which  this 
right  of  entry  or  possession  may  be  destroyed.  The 
consideration  of  the  effects  of  fines  levied  with  pro- 
clamations, and  of  the  right  of  entry,  as  between  land- 
lord and  tenant,  for  condition  broken,  will  be  reserved 
for  the  two  following  chapters :  those  acts  only  are 
here  to  be  considered,  which  take  away  the  right  of 
entry  from  the  claimant,  but  leave  in  him,  notwith- 
standing, the  right  of  property  or  of  action. 

In  this  point  of  view,  a  right  of  entry  may  be 
destroyed  in  three  several  ways.  First,  by  Discon- 
tinuance ;  secondly,  by  Descent ;  and,  thirdly,  by  the 
Statute  of  Limitations. 

1.  BY  DISCONTINUANCE. 


(a)  Doe  d.  Morgan  v.  Bluck.  3      (6)  Vide  ante,  11. 
Camp.  447. 


ACTION    OF    EJECTMENT.  35 

A  discontinuance  of  an  estate  signifies  such  an 
alienation  made  or  suffered,  by  any  person  seized  of 
an  estate  tail,  or  in  autre  droit,  in  things  which  lie 
in  livery,  as  takes  away  the  entry  of  the  person  en- 
titled after  the  death  of  the  alienor. 

"  This  injury  happens  when  he  who  hath  an 
estate-tail,  maketh  a  larger  estate  of  the  land  than  by 
law  he  is  entitled  to  do :  in  which  case  the  estate  is 
good,  so  far  as  his  power  extends  who  made  it,  but 
no  farther.  As  if  a  tenant  in-tail  makes  a  feoffinent 
in  fee-simple,  or  for  the  life  of  the  feoffee,  or  in-tail ; 
all  which  are  beyond  his  power  to  make,  for  that  by 
the  common  law  extends  no  farther  than  to  make 
a  lease  for  his  own  life ;  here  the  entry  of  the  feoffee 
is  lawful  during  the  life  of  his  feoffor;  but  if  he  re- 
tains the  possession  after  the  death  of  the  feoffor,  it 
is  an  injury  which  is  termed  a  discontinuance  ;  the 
ancient  legal  estate,  which  ought  to  have  survived  to 
the  heir  in-tail,  being  gone,  or  at  least  suspended,  and 
for  a  while  discontinued.  For,  in  this  case,  on  the 
death  of  the  alienors,  neither  the  heir  in-tail,  nor 
they  in  remainder  or  reversion  expectant  on  the 
determination  of  the  estate-tail,  can  enter  on  and 
possess  the  lands  so  alienated.  Because  the  original 
entry  of  the  feoffee  being  lawful,  and  an  apparent 
right  of  possession  being  thereby  gained,  the  law 
will  not  suffer  that  right  to  be  overthrown  by  the 
mere  act  or  entry  of  the  claimant."  (a) 

By  the  common  law,  an  estate-tail  may  be  discon- 

(a)  3  Blk.  Com.  171,  5. 

D2 


36  OF    THE    TITLE,    &C,    IN    THE 

tinued  five  ways :  first,  by  confirmation  with  warranty  ; 
secondly,  by  feoffment;  thirdly,  by  fine;  fourthly, 
by  common  recovery ;  fifthly,  by  release. 

An  estate-tail  cannot,  however,  be  discontinued, 
except  where  he  who  makes  the  discontinuance  was 
once  seized  by  force  of  the  in-tail;  that  is,  seized 
of  the  freehold  and  inheritance  of  the  estate  in-tail, 
and  not  of  a  remainder  or  reversion  expectant  upon 
a  freehold,  (a)  Hence,  if  there  be  tenant  for  life, 
the  remainder  in-tail,  &c.  and  tenant  for  life,  and  he 
in  the  remainder  in-tail  levy  a  fine,  this  is  not  any 
discontinuance  or  divesting  of  any  estate  in  remain- 
der, but  each  of  them  passes  that  which  they  have 
power  and  authority  to  pass,  (b) 

So  also,  to  make  a  discontinuance  by  levying  a  fine, 
it  is  necessary  that  the  estate  should  pass  to  the 
alienee  by  virtue  of  the  fine ;  if,  therefore,  the  tenant 
in-tail  first  alienate  his  estate  by  modes  of  convey- 
ance, which  transfer  only  the  possession  and  not  the 
right,  as  by  bargain  and  sale,  lease  and  release,  &c. 
and  the  grantee  is  seized  by  virtue  of  such  convey- 
ance, a  fine,  levied  afterwards  by  the  tenant  in-tail, 
will  not  operate  as  a  discontinuance  of  the  estate-tail ; 
but  the  right  of  entry  will  remain  to  the  remainder- 
man, or  reversioner,  for  the  first  five  years  after  his 
title  accrues,  (c) 

But,  where  tenant  in  tail-male,   with  remainder 


(a)  1  Inst.  347,  (6)  et  vide  Litt.  s.     (fr)  1  Inst.  302,  (6). 
640.  658.  (c)  Seymour's  case,  10  Co.  96,  (a). 


ACTION    OF    EJECTMENT.  37 

over  in-fee,  in  consideration  of  a  marriage,  con- 
veyed his  estate-tail  by  lease  and  release  to  trustees, 
and  their  heirs  to  several  uses,  and  in  the  release 
covenanted  to  levy  a  fine  to  the  same  uses,  and  did 
after  his  marriage  levy  a  fine  in  pursuance  of  his 
covenant,  it  was  held  that  this  fine  operated  as  a  dis- 
continuance of  the  estate  ;  because  the  lease,  release, 
and  fine,  were  all  but  one  assurance,  and  operated  as 
such ;  for  that  the  deeds  could  only  be  considered  as 
a  covenant  to  levy  a  fine,  and  were  incomplete  till 
the  fine  was  levied,  so  that  the  estate-tail  passed  by 
the  fine,  (a) 

This  case  was  distinguished  from  Seymour's,  be- 
cause, in  that  case,  the  fine  was  not  levied  until  a 
year  after  the  bargain  and  sale  was  enrolled,  and  it 
was  expressly  found  by  the  verdict,  that  the  bar- 
gainee entered,  and  was  seized  by  force  of  the  bar- 
gain and  sale  only  ;  so  that  the  bargain  and  sale  was 
totally  unconnected  with  the  fine :  nor  did  it  appear 
that  any  fine  was  intended  to  be  levied  at  the  time 
when  the  bargain  and  sale  was  executed. 

Where  the  title  of  the  lessor  was  under  a  mar- 
riage-settlement, by  which  the  premises  were  set- 
tled on  the  husband  for  life,  remainder  to  the  chil- 
dren of  the  marriage  as  tenants  in  common  in-tail, 
with  cross  remainders  in  default  of  issue  of  any 
child  to  the  survivors  in-tail,  witli  remainder  to  the 
survivor  of  husband  and  wife,  in-fee :  and  two 

(a)  Doe  d.  Odiarne  v.  Whitchead,  Burr.  70  A. 


38  OP    THE    TITLE,    &C.    IN    THE 

daughters  were  the  issue  of  the  marriage ;  the  first 
of  whom  married  the  lessor  of  the  plaintiff,  and  the 
second  the  defendant,  and  died  without  issue ;  but 
previous  to  her  death,  she  and  her  husband  levied  a 
fine  with  proclamations  of  her  moiety,  to  recover 
which  the  action  was  brought :  Mr.  J.  Gould,  who 
tried  the  cause,  nonsuited  the  plaintiff,  being  of  opinion 
that  the  levying  of  the  fine  had  discontinued  the 
estate-tail,  taken  away  the  claimant's  right  of  entry, 
and  driven  him  to  his  writ  offormedon.  (a) 

By  the  common  law  the  alienation  of  a  husband, 
who  was  seized  in  right  of  his  wife,  worked  a  discon- 
tinuance of  her  estate ;  but  now,  by  the  32  Hen.  VIII. 
c.  *28.  s.  6,  it  is  provided,  that  no  act  of  the  husband 
only,  shall  work  a  discontinuance  of,  or  prejudice  the 
inheritance  or  freehold  of  the  wife;  but  that,  after  his 
death,  she,  or  her  heirs,  may  enter  on  the  lands  in 
question ;  and,  therefore,  the  wife,  or  her  heirs,  may 
now  in  such  cases  support  ejectment. 

A  feoffment  by  husband  and  wife  is  within  this 
statute ;  because  in  substance  it  is  the  act  of  the  hus- 
band only;  but  a  fine  levied  by  the  husband  and 
wife  is  not.  (fr) 

When  also  the  husband  and  wife  are  jointly  seized 
to  them  and  their  heirs,  or  the  heirs  of  their  two 
bodies,  of  an  estate  made  during  the  coverture,  and 


(a)  Run.  Eject.  45.  case,  2  Co.  77,  (6). 

(6)  1  Inst.  326,  (a).    Cromwell's 


ACTION    OF    EJECTMENT.  39 

the  husband  makes  a  feoffment  in-fee,  and  dies,  the 
wife  may  enter  under  the  provisions  of  this  statute, 
although  it  was  the  inheritance  of  them  both,  (a) 

By  the  statute  of  11  Hen.  VII.  c.  20 ,  it  is  also  pro- 
vided, that  "if  a  woman  has  any  estate-tail  jointly 
with  her  husband,  or  only  to  herself,  or  to  her  use, 
in  any  lands  or  hereditaments  of  the  inheritance  or 
purchase  of  her  husband,  or  given  to  the  husband 
and  wife  in-tail,  by  any  of  the  ancestors  of  the  hus- 
band, or  by  any  other  person  seized  to  the  use  of  the 
husband,  or  his  ancestors,  and  shall  hereafter,  being 
sole,  or  with  any  other  after-taken  husband,  discon- 
tinue, &c.  the  same;  every  such  discontinuance  shall 
be  void,  and  it  shall  be  lawful  for  every  person  to 
whom  the  interest,  title,  or  inheritance  after  the 
decease  of  the  said  woman,  should  appertain,  to 
enter,  &c. 

This  statute  is,  for  the  most  part,  confined  to 
conveyances  by  the  husband,  or  his  ancestor,  for  the 
advancement  of  the  wife,  (b)  Hence,  if  land  be 
settled  by  the  ancestor  of  the  wife,  in  consideration 
of  the  marriage,  it  is  not  within  this  act;  for  it 
shall  be  intended  that  the  advancement  of  the  wife 
was  the  principal  cause  of  the  gift,  (c)  But  where 
the  conveyance  is  by  a  stranger,  in  consideration  of 
the  wife's  fortune  paid  by  her  father  to  the  vendor, 
and  other  money  paid  by  the  husband,  it  is  within  the 

(a)  1  Inst.  326,  (a).    Greenley's      S.C.  1  Leon.  261. 
case,  8  Co.  142,  (6).  (c)  Kynaston  v.  Lloyd,  Cro.  Jac. 

(6)  Foster  v.  Pitfall,  Cro.  Eliz.  2.      624. 


40  OF    THE    TITLE,    &C.    IN    THE 

act.  («)  So  if  the  conveyance  be  by  the  husband,  or 
his  ancestor,  in  consideration  of  marriage,  although 
it  be  joined  with  a  money  consideration,  yet  it  is 
within  the  statute.  (6)  But  no  estate  is  within  the 
meaning  of  this  statute,  unless  it  be  for  the  jointure 
of  the  wife.  Hence,  although  an  estate  devised  by 
the  husband  to  the  wife  in-tail,  with  remainder  over 
to  a  stranger  in-fee,  be  within  the  words,  yet  it  is 
not  within  the  meaning  of  the  statute ;  for  it  shall 
not  be  intended  to  be  for  a  jointure,  where  no  in- 
heritance is  reserved  to  the  husband  or  his  heirs  > 
and  the  meaning  of  the  statute  is,  that  the  wife  shall 
not  prevent  the  lands  descending  to  the  heirs  of  the 
husband,  (c) 

If  the  issue  in  special-tail,  with  reversion  in-fee 
expectant,  levy  a  fine,  and  afterwards  his  mother, 
being  tenant  in-tail  within  this  act,  make  a  lease  for 
three  lives  (not  warranted  by  the  statute  32  Hen.  VIII. 
c.  28.)  living  the  issue  ;  the  conusee  may  enter,  (d) 
But  if  the  reversion  in-fee  had  been  in  another,  the 
conusee  could  not  enter,  because  he  would  have 
nothing  but  by  estoppel ;  nor  the  heir,  because  he 
had  concluded  himself  by  the  fine ;  (e)  nor  the 
issue.  (/) 

Formerly  an  alienation  made  by  a  sole  corporation, 

(a)  Piggot  v.  Palmer,  Moore,  250.  (d)  Brown's  case,  3  Co.  50,  (b). 

(6)  Kirkman  v.  Thomson,  Cro.  {e}  Ward  v.  Walthew,  Cro.  Jac. 

Jac.  474.  178. 

(c)  Foster  v.  Pitfall,  Cro.  Eliz.  2.  (/)  Lincoln  Coll.  case,  3  Co.  61, 

S.  C.  1  Leon.  261.  (a); 


ACTION    OF    EJECTMENT.  41 

as  a  bishop,  or  a  dean,  without  the  consent  of  the 
chapter,  was  a  discontinuance ;  but  since  the  dis- 
abling statutes,  (a)  which  declare  such  alienations 
absolutely  void,  ab  initio,  no  discontinuance  can  by 
such  means  be  effected,  (b) 

2.  BY  DESCENT,  (c) 

"  Descents,  which  take  away  entries,  are  when  any 
one,  seized  by  any  means  whatsoever  of  the  inherit- 
ance of  a  corporeal  hereditament,  dies,  whereby  the 
same  descends  to  his  heir:  in  this  case,  however 
feeble  the  right  of  the  ancestor  might  be,  the  entry 
of  any  other  person  who  claims  title  to  the  freehold  is 
taken  away ;  and  he  cannot  recover  possession  against 
the  heir  by  this  summary  method,  but  is  driven  to  his 
action  to  gain  a  legal  seisin  of  the  estate.  And  this, 
first,  because  the  heir  comes  to  the  estate  by  act  of 
law,  and  not  by  his  own  act ;  the  law  therefore  pro- 
tects his  title,  and  will  not  suffer  his  possession  to  be 
divested,  till  the  claimant  hath  proved  a  better  right. 
Secondly,  because  the  heir  may  not  suddenly  know 
the  true  state  of  his  title;  and  therefore  the  law, 


(a)  1  Eliz.  c.  19.  13  Eliz.  c.  10.  a  general  account  of  the  doctrine 

(6)  F.  N.  B.  194.  of  descent  cast  is  given  here,  in 

(c)    It    is    scarcely    possible    to  order   to  render  this  part  of  the 

suggest  a  case,  in  which  the  doc-  subject  complete.    Vide  Taylor  d. 

trine  of  descent  cast  can  be  now  so  Atkins  v.  Horde  (Burr.  60.)  where 

applied,  as  to  prevent  a  claimant  the  history  and  principles  of  the 

from    maintaining    ejectment,  as,  doctrine  of  descent  cast  are  most 

from  the  principles  of  disseisin  at  ably  investigated  by  Lord  Mans- 

election,   he   may  always  lay  his  field.    Vide  also  William  d.  Hughes 

demise  in  the  time  of  the  ancestor,  v.  Thomas,  (12  East.  141.) 
and  elect  not  to  be  disseised.    But 


42  OF   THE    TITLE,    &C.    IN    THE 

which  is  ever  indulgent  to  heirs,  takes  away  the  entry 
of  such  claimant  as  neglected  to  enter  on  the  an- 
cestor, who  was  well  able  to  defend  his  title ;  and 
leaves  the  claimant  only  the  remedy  of  an  action 
against  the  heir.  Thirdly,  this  was  admirably 
adapted  to  the  military  spirit  of  the  feudal  tenures, 
and  tended  to  make  the  feudatory  bold  in  war ;  since 
his  children  could  not,  by  any  mere  entry  of  another, 
be  dispossessed  of  the  lands  whereof  he  died 
seized.  And,  lastly,  it  is  agreeable  to  the  dictates 
of  reason,  and  general  principles  of  law."  (a) 

This  doctrine  of  descent  cast  does  not  apply,  if  the 
claimant  be  under  any  legal  disabilities  during  the 
life  of  the  ancestor,  either  of  infancy,  coverture, 
imprisonment,  insanity,  or  being  out  of  the  realm; 
because  in  all  these  cases  there  is  no  neglect  or  laches 
in  the  claimant,  and  therefore  no  descent  shall  bar  or 
take  away  his  entry.  (£)  Nor  does  it  affect  copy- 
hold, or  customary  estates,  where  the  freehold  is  in 
the  lord ;  (c)  nor  cases  where  the  party  has  not  any 
remedy  but  by  entry,  as  a  devisee,  (d) 

The  right  of  entry  may  be  tolled,  or  taken  away, 
by  a  descent  cast,  in  cases  of  abatement,  intrusion, 
and  disseisin. 

By  the  common  law,  if  an  abator,  or  intruder,  or 
disseisor,  died  in  peaceable  possession,  the  descent  to 
the  heir  gave  to  him  a  right  of  possession,  and  took 

(a)  3  Blk.  Com.  176.  East.  299. 

(6)  Litt.  1.  3  c.  6.  (</)  Co.  Litt.  240,  (6). 

(c)  Doe  rf.  Cook  v.  Danvers,  7 


ACTION    OF    EJECTMENT.  43 

away  from  the  true  owner  his  right  of  entry,  although 
such  death  happened  immediately  after  the  wrongful 
acquisition  of  the  lands  ;  but  by  the  statute  of  32 
Hen.  VIII.  c.  33,  it  is  provided,  that  "the  dying 
seized  of  any  disseisor  of  and  in  any  lands,  &c.  hav- 
ing no  title  therein,  shall  not  be  deemed  a  descent  to 
take  away  the  entry  of  the  person,  or  his  heir,  who 
had  the  lawful  title  of  entry  at  the  time  of  the  descent, 
unless  the  disseisor  has  had  peaceable  possession  for 
five  years  next  after  the  disseisin,  without  entry  or 
continual  claim  by  the  person  entitled."  This  statute, 
however,  being  a  penal  one,  is  constructed  strictly,  and 
does  not  extend  to  the  feoffee,  or  donee  of  the  disseisor, 
mediate  or  immediate,  and  therefore  the  descent  in 
such  cases  remains  as  at  the  common  law.  (a)  It  is 
also  said,  that  abaters  and  intruders  are  not  within 
the  statute  :  but  the  successors  of  bodies  politic  and 
corporate  in  cases  of  disseisin  are  within  its  remedy, 
although  the  statute  speak  of  him  that  at  the  time  of 
such  descent  had  title  of  entry,  or  his  heirs ;  for  the 
statute  clearly  extends  to  the  predecessor,  being  dis- 
seised, and  consequently  without  naming  his  suc- 
cessor extendeth  to  him,  for  he  is  the  person  that,  at 
the  time  of  such  descent,  had  title  of  entry.  (£) 

If  there  be  tenant  for  life,  the  reversion  in-fee,  and 
tenant  for  life  be  disseised,  and  die,  and  the  disseisor 
afterwards  die  within  five  years,  the  reversioner  is 
within  the  benefit  of  the  statute,  and  his  entry  is  not 
taken  away ;  for,  after  the  death  of  the  tenant  for 
life,  it  is  a  continuation  of  the  same  disseisin  to  the 

(a)  Co.  Litt.  256.  Tailbois,  Plow.  38.  47. 

(h)  Co.  Litt.  238.     Wimbish  v. 


44  OF   THE    TITLE,    &C.    IN    THE 

reversioner.  But  if  the  disseisor  had  died  seized,  and 
the  tenant  for  life  had  afterwards  died,  there  the 
descent  would  have  taken  away  the  entry  of  the  re- 
versioner, because  there  was  no  continuation  of  the 
same  disseisin  upon  the  reversioner.  The  act  only 
continues  a  right  of  entry  in  the  disseisee,  where 
a  right  of  entry  was  once  in  him ;  but  in  the  last  case 
a  right  of  entry  never  was  in  the  reversioner,  and 
consequently  never  having  had  the  right  of  possession, 
he  is  not  a  disseissee  within  the  statute,  to  punish  the 
possessifcn  of  the  heir  as  an  actual  ouster,  since  the 
reversioner  was  never  actually  ousted  either  by  the 
original  disseisor,  or  his  heir,  (a) 

It  is  immaterial  whether  the  descent  be  in  the  col- 
lateral line  or  lineal ;  (b}  but  a  dying  seized  of  an 
estate  for  life,  or  of  a  reversion,  or  remainder,  will 
riot  take  away  an  entry ;  (c)  because,  for  this  pur- 
pose, it  is  essentially  necessary  that  the  disseisor 
should  die  seized  both  of  the  fee  or  fee-tail  and  free- 
hold. If,  therefore,  the  disseisor  make  a  lease  for 
his  own  life,  or  the  life  of  another,  and  die  seized  of 
the  reversion,  this  descent  will  not  take  away  the 
entry,  because  although  he  had  the  fee  he  had  not  the 
freehold  at  the  time  of  his  death ;  but  if  he  make 
a  lease  for  years  and  die  seized  of  the  reversion,  the 
entry  will  be  taken  away,  for  the  fee  and  freehold  are 
both  in  him.  The  law  is  the  same  in  the  case  of  a 
remainder,  and  when  the  land  is  extended  upon  a 
statute,  judgment,  or  recognizance,  (d) 

(a)  Co.  Litt.  238.    Wimbish  t;.         (c)  Litt.  s.  387,  388. 
Tailbois,  Plow.  38.  47.  (d)  Co.  Litt.  239,  (6). 

(ft)  Co.  Litt.  339,  (t). 


ACTION    OF    EJECTMENT.  45 

It  is  also  necessary  that  the  descent  of  the  fee  and 
freehold  be  immediate  to  bar  the  entry.  Hence,  if 
feme  disseisoress  take  husband,  and  have  issue,  and 
afterwards  the  husband  die,  such  descent  will  not  take 
away  the  entry  of  the  disseissee;  because  the  heir 
comes  not  to  the  fee  and  freehold  at  once,  the  latter 
having  been  suspended  until  the  death  of  the  father, 
who  was  tenant  by  the  courtesy,  (a) 

To  constitute  a  descent,  therefore,  which  shall 
take  away  an  entry,  it  appears,  that  there  must  be 
a  dying  seized  in  demesne  of  a  corporeal  inheritance, 
either  in  fee  or  fee-tail,  that  the  rightful  owner  be 
under  no  legal  disability  in  the  time  of  the  ancestor, 
and  also  in  those  cases  to  which  the  statute  of  32  Hen. 
VIII.  c.  33,  extends,  that  the  disseisor  have  five  years 
quiet  possession  of  the  lands. 

3.  BY  THE  STATUTE  OF  LIMITATIONS. 

By  the  statute  of  21  Jac.  I.  c.  16.  s.  1,  it  is  enacted, 
that  tfno  person  shall  make  any  entry  upon  any 
lands,  &c.  but  within  twenty  years  next  after  his  right 
or  title  shall  first  descend,  or  accrue ;  and  in  default 
thereof  such  person  so  not  entering,  and  his  heir, 
shall  be  utterly  disabled  from  such  entry."  Section 
the  second  enacts,  "  that  if  any  person  having  a  right 
or  title  of  entry  shall  be,  at  the  time  of  the  said  right 
or  title  first  descended,  accrued,  come,  or  fallen, 
within  the  age  of  twenty-one  years,  feme  covert)  non 
compos  mentis,  imprisoned,  or  beyond  seas,  then  such 

(a)  Litt.  s.  394. 


46  OF    THE    TITLE.    &C.    IN    THE 

person,  and  his  heir,  may,  notwithstanding  the  said 
twenty  years  be  expired,  bring  his  action,  or  make 
his  entry,  as  he  might  have  done  before  this  act,  so  as 
such  person,  or  his  heir,  shall,  within  ten  years  next 
after  his  and  their  full  age,  discoverture,  coming  of 
sound  mind,  enlargement  out  of  prison,  or  coming 
into  this  realm,  or  death,  take  benefit  of,  and  sue  forth 
the  same,  and  at  no  period  after  the  said  ten  years." 

From  the  ancient  doctrine  of  nullum  tempus  oc- 
currit  regi,  the  King  is  not  bound  by  this  statute,  (a) 
nor  are  ecclesiastical  persons  within  it,  because  it 
would  be  an  indirect  means  of  evading  the  statutes 
made  to  prohibit  their  alienations ;  but,  with  these 
exceptions,  the  statute  applies  to  all  persons,  capable 
of  a  right  to  enter ;  and,  therefore,  if  it  appear  that 
there  has  been  a  possession  by  the  defendant,  or 
those  under  whom  he  holds,  for  the  last  twenty  years, 
adverse  to  the  title  of  the  claimant,  and  that  the 
claimant  has  not  been  prevented  from  prosecuting  his 
claim  earlier,  by  reason  of  some  of  the  disabilities 
allowed  by  the  statute,  he  will  be  barred  of  his  re- 
medy by  ejectment. 

It  is  not  easy  to  define  what  will  constitute  an  ad- 
verse holding  of  this  nature,  but  it  may  be  safely 
laid  down  that  an  adverse  possession  will  be  nega- 
tived, when  the  parties  claim  under  the  same  title, 

(o)  By  stat.  9.  Geo.  III.  c.  16,  the  years    next  before  suit  or  claim  ; 

King    is  disabled    from    claiming  and  consequently  an  adverse  pos- 

title,  (except  to  liberties  and  fran-  session  of  lands  for  sixty  years  will 

chises,)  unless  the  same  shall  ac-  now  be  a  good  title  even  against 

crtie    within     the    space  of   sixty  the  Crown. 


ACTION    OP    EJECTMENT.  47 

when  the  possession  of  one  party  is  consistent  with 
the  title  of  the  other,  when  the  party  claiming  title 
has  never  in  contemplation  of  law  been  out  of  pos- 
session, and  when  the  possessor  has  acknowledged  a 
title  in  the  claimant. 

First,  where  the  parties  claim  under  the  same  title. 

As  if  a  man  seized  of  certain  land  in-fee  have  issue 
two  sons,  and  die  seized,  and  the  younger  son  enter 
by  abatement  into  the  land,  the  statute  will  not 
operate  against  the  elder  son ;  for  when  the  younger 
son  so  abates  into  the  land  after  the  death  of  his 
father,  before  an  entry  made  by  the  elder  son,  the 
law  intends  that  he  entered  claiming  as  heir  to  his 
father,  by  which  title  the  elder  son  also  claims,  (a) 
So  also  if  the  defendant  should  make  title  under  the 
sister  of  the  lessor  of  the  plaintiff,  and  prove  that  she 
had  enjoyed  the  estate  above  twenty  years,  and  that 
he  had  entered  as  heir  to  her,  the  court  would  not 
regard  it,  because  her  possession  would  be  construed 
to  be  by  courtesy,  and  not  to  make  a  disherison,  but 
by  silence  to  preserve  the  possession  of  the  brother, 
and  therefore  not  within  the  intent  of  the  statute ; 
though,  if  the  brother  be  once  in  actual  possession, 
and  ousted  by  his  sister,  it  would  it  seems  be  otherwise, 
for  then  her  entry  could  not  possibly  be  construed 
to  be  to  preserve  his  possession.  (6) 

Secondly,  where  the  possession  of  one  party  is 
consistent  with  the  title  of  the  other. 

(a)  Co.  Litt.  s.  396.  (6).— Sharrington  v.  Strotton,  Plow. 

(6)  B.  N.  P.  102.     Co.  Litt  242,     298,  306. 


48  OF    THE    TITLE,    &C.    IN    THE 

Thus,  where  by  a  marriage-settlement  a  certain 
copyhold  estate  of  the  wife  was  limited  to  the  use  of 
the  survivor  in-fee,  but  no  surrender  was  made  to  the 
use  of  the  settlement,  and,  after  the  death  of  the 
wife,  the  husband  was  admitted  to  the  lands  pursuant 
to  the  equitable  title  acquired  by  the  settlement,  it 
was  held  that  if  he  had  had  no  other  title  than  the 
admission,  a  possession  by  him  for  twenty  years 
would  have  barred  the  heir-at-law  of  the  wife  ;  but  as 
it  appeared  that  there  was  a  custom  in  the  manor  for 
the  husband  to  hold  the  lands  for  his  life,  in  the 
nature  of  a  tenant  by  the  courtesy,  and  this  without 
any  admittance  after  the  death  of  the  wife,  the  pos- 
session of  the  copyhold  by  the  husband  was  referred 
to  this  title,  and  not  to  the  admission  under  the  settle- 
ment ;  and  such  possession  being  consistent  with  the 
title  of  the  heir-at-law,  he  was  allowed  to  maintain 
ejectment  against  the  devisee  of  the  husband^  within 
twenty  years  after  the  husband's  death,  though  more 
than  twenty  years  after  the  death  of  the  wife,  (a) 

And  although  one  third  part  of  the  premises  had 
been  settled,  many  years  before  the  marriage,  upon 
a  third  person  for  life,  and  the  steward  of  the  manor, 
appointed  by  the  heir-at-law  and  her  husband,  had 
constantly  debited  himself  with  the  receipt  of  two- 
thirds  of  the  rent  for  the  husband,  on  account  of  his 
wife,  and  the  remaining  one-third  for  the  annuitant, 
yet,  as  no  surrender  had  been  made  to  the  trustees 
of  the  annuitant,  it  was  held  that  such  payment  to  him 
must  be  taken  to  be  with  the  consent  of  the  person 

(a)  Doe  d.  Milner  v.  Brightwen,  10  East.  588. 


ACTION    OF    EJECTMENT.  49 

entitled  by  law  to  the  whole  premises,  so  as  to  do 
away  the  notion  of  adverse  possession  by  the  husband 
of  that  third,  distinct  from  his  possession  of  the  other 
two-thirds  as  tenant  by  the  courtesy  after  the  wife's 
death. 

So  also  where  a  party  devised  a  certain  estate  to 
his  nephew  and  two  neices,  as  tenants  in  common, 
and  one  of  them  died  in  the  testator's  life-time,  leav- 
ing an  infant  daughter;  and  after  the  testator's  death, 
the  nephew  and  surviving  neice  covenanted  to  convey 
one-third  to  a  trustee,  upon  trust  to  convey  the  same 
to  the  infant  if  she  attained  twenty-one,  or  otherwise 
to  themselves,  but  no  conveyance  was  executed 
pursuant  to  the  deed,  but  a  third  of  the  rents  were 
received  by  the  trustee  for  the  use  of  the  infant  during 
her  life-time.  It  was  held  that  there  was  no  adverse 
possession  until  the  death  of  the  infant,  and  that  the 
devisee  of  the  nephew  might  maintain  ejectment  for 
his  share  of  the  undivided  third,  within  twenty  years 
after  the  infant's  death,  although  more  than  twenty 
years  after  the  death  of  the  nephew,  (a) 

So  also  where  a  copyholder  with  the  licence  of  the 
lord  leased  the  copyhold  lands  for  forty  years,  with 
a  proviso  for  re-entry  if  the  rent  should  be  in  arrear, 
and  made  a  will  devising  such  copyhold  lands  to  A. 
and  died,  twenty  years  of  the  lease  being  then  unex- 
pired,  and  the  heir  at  law  received  the  rent  from  the 
lessee  from  the  time  of  the  death  of  the  copyholder 

(a)  Doe.  d.  Colclotigh  v.  Halse,  3.  B.  &.  C.757. 

E 


50  OF    THE    TITLE,    &C.    IN    THE 

until  the  expiration  of  the  lease,  and  for  ten  years 
afterwards,  when  the  devisee  brought  an  action  of 
ejectment;  it  was  holden  that  the  lessee  was  not 
barred  of  this  remedy  by  the  statute  of  limitations, 
although  more  than  twenty  years  had  elapsed  from 
the  time  of  the  death  of  the  testator,  and  the  for- 
feiture of  the  lease  by  non-payment  of  rent  to  the 
devisee  ;  for  until  the  termination  of  the  lease  the 
devisee  had  no  right  to  enter  except  for  the  forfeiture, 
and  although  he  might  have  entered  by  reason  of  the 
forfeiture,  yet  he  was  not  bound  to  do  so.  (a) 

But  where  copyhold  lands  were  granted  to  A.  for 
the  lives  of  herself  and  B.,  and  in  reversion  to  C.9 
for  other  lives ;  and  A.  died,  having  devised  to  B., 
who  entered  and  kept  possession  for  more  than 
twenty  years  ;  it  was  held,  that  C.  was  barred  by  the 
statute  after  B.'s  death  from  maintaining  ejectment, 
for  that  C.'s  right  of  possession  accrued  on  the  death 
of  A.,  inasmuch  as  there  cannot  be  a  general  occu- 
pant of  copyhold  land.  (&) 

So  also  where  the  rents,  issues,  and  profits  of  a 
trust  estate  were  received  by  a  cestui  que  trust  for 
more  than  twenty  years  after  the  creation  of  the 
trust,  without  any  interference  of  the  trustees,  such 
possession,  &c.  being  consistent  with,  and  secured 
to  the  cestui  que  trust,  by  the  terms  of  the  trust- 
deed,  the  receipt  was  held  not  to  be  adverse  to  the 
title  of  the  trustees,  so  as  to  bar  their  ejectment 
against  the  grantees  of  the  cestui  que  trust,  brought 

(a)  Doe  d.  Cook  v.\  Danvers,  7         (b)  Doe  d.  Foster  «.  Scott,  4  B. 
East  299.  &  C.  706. 


ACTION    OF    EJECTMENT.  51 

after  the  twenty  years,  (a)  And  indeed,  as  the  cestui 
que  trust  is  a  tenant  at  will  (6)  to  the  trustees,  and  his 
possession  is  the  possession  of  the  trustees,  the  statute 
will  never  operate  between  trustee  and  cestui  que 
trust,  except  in  very  particular  cases;  although  it 
seems  that  if  a  cestui  que  trust  sell  or  devise  the 
estate,  and  the  vendee  or.  devisee  obtain  possession 
of  the  title  deeds  and  enter,  and  do  no  act  recog- 
nizing the  trustee's  title,  the  statute  will  operate  from 
the  time  of  such  entry,  (c) 

In  like  manner  the  payment  of  interest  upon  a 
mortgage  will  prevent  the  statute  from  running  against 
the  mortgagee,  although  he  may  not  have  been  in 
possession  of  the  lands  for  upwards  of  twenty  years, 
because  such  possession  is  consistent  with  the  original 
agreement  of  the  parties.  (d) 

It  seems  as  yet  a  very  unsettled  point,  whether  an 
encroachment  upon  the  waste  adjoining  to  the  de- 
mised premises  by  a  lessee,  and  uninterrupted  pos- 
session thereof  by  him  for  twenty  years,  shall  give  to 
the  lessee  a  possessory  right  thereto,  or  whether  he 
shall  be  deemed  to  have  enclosed  the  waste,  in  right 
of  the  demised  premises,  for  the  benefit  of  the  lessor 
after  the  expiration  of  the  term.  Lord  Kenyon,  C.  J., 
Lee,  C.J.,  and  Thompson,  B.,  have  held  that  the 
encroachment  belongs  to  the  lessee,  whilst  on  the 

(a)  Keane  d.  Lord  Byron  ».  Dear-  Purchasers,  2d  Edit.  241. 
dou,  8  East.  248.  (d)    Hatcher     v.    Fineux,    Lord 

(6)  Gree  v.  Rolle,  Lord  Raym.  lUym.  740.  Hall  v.  Doe  d.  Sur- 
716.  tees,  5  B.  &  A.  63T. 

(c)  Vide  Sugden's  Vendors    and 

E   2 


52  OF    THE    TITLE,    &C.    IN    THE 

other  hand,  Heath,  J.,  Butler,  J.,  Perryn,  B.,  and 
Graham,  B.,  have  held  that  the  landlord  is  entitled  to 
it  (a) 

But  at  all  events,  it  seems  clear,  that  such  pos- 
session will  be  adverse  to  the  rights  of  the  com- 
moners, and  indeed  to  the  lord  himself,  excepting  as 
landlord  at  the  expiration  of  the  lease,  (b) 

It  should  however,  be  observed,  that  although 
twenty  years  peaceable  possession  will  undoubtedly 
be  a  good  title  against  the  lord,  qud  lord,  if  the  pos- 
session were,  in  the  first  instance,  taken  in  defiance  of 
him,  and  no  acknowledgment  at  any  time  afterwards 
made,  yet,  that  if  the  possession  be  at  first  by  the 
lord's  permission,  or  the  party  subsequently  make  an 
acknowledgment  that  the  lands  were  originally  so 
taken,  the"  statute  will  never  run  against  the  lord ; 
for  the  possession  of  a  tenant  at  will  for  ever  so  many 
years  is  no  disseisin,  (c) 

On  this  principle,  where  a  party  enclosed  a  small 
piece  of  waste  land,  and  occupied  it  for  thirty  years 
without  paying  rent,  and  at  the  expiration  of  that 
time  the  owner  of  the  adjoining  land  demanded  six- 
pence rent,  which  the  party  paid  on  three  several 
occasions,  it  was  held,  that  this  evidence,  in  the 
absence  of  all  other  circumstances,  was  conclusive 


(a)  Doe  d.  Colclough  u.  Mulliner,  Taunt.  208. 

1  Esp.  460.    Creach  v.  Wilmot,  2  (V)  Creach  v.  Wilmot,  2  Taunt. 

Taunt.    160,    (in    notis.)     Doe  d.  160,  (in  notis.) 

Challnor  v.  Davies,   1    Esp.  461.  (c)  B.  N.P.104. 
Bryan  d.   Child   v.    Winwood,    1 


ACTION    OF    EJECTMENT.  53 

to  show  that  the  occupation  of  the  defendant  began 
by  permission.  (a) 

So  also,  where  a  cottage  standing  in  the  corner  of  a 
meadow,  (belonging  to  the  lord  of  a  manor,)  but  sepa- 
rated from  the  meadow,  and  from  a  highway  by  a 
hedge,  had  been  occupied  for  about  twenty  years  with- 
out any  payment  of  rent,  and  then,  upon  possession 
being  demanded  by  the  lord,  was  reluctantly  given 
up  ;  and  having  been  so  given  up  was  restored  to 
the  party,  he  being  at  the  same  time  told,  that  if 
allowed  to  resume  possession,  it  would  be  only 
during  pleasure,  and  he  kept  possession  for  fifteen 
years  more,  and  never  paid  any  rent;  it  was  held 
that  the  jury  were  warranted  in  presuming  that  the 
possession  had  commenced  by  the  permission  of  the 


Thirdly,  an  adverse  possession  will  be  negatived 
when  the  party  claiming  title  has  never,  in  contem- 
plation of  law,  been  out  of  possession. 

Thus,  when  A.  devised  lands  to  B.  and  his  heirs, 
and  died,  and  B.  died,  and  the  heir  of  B.}  and  a 
stranger  entered  and  took  the  profits  for  twenty  years, 
upon  ejectment  brought  by  the  devisee  of  the  heir  of 
B.  against  the  stranger,  it  was  held  that  this  percep- 
tion of  the  rents  and  profits  by  the  stranger  was  not 
adverse  to  the  devisee's  title;  because,  when  two 
men  are  in  possession,  the  law  adjudges  it  to  be  the 


(a)  Doe  d.  Jackson  v.  Wilkinson,         (b)  Doe  d.  Thompson  v.  Clark 
3  B  &C.413.  8  B.&C.717. 


54  0*r  THE    TITLE,    &C.    IN    TUB 

possession  of  him  who  hath  the  right :  the  lessor  of 
the  plaintiff,  and  the  defendant,  were  not  tenants  in 
common,  for  the  defendant  was  a  mere  stranger ;  and, 
though  he  took  a  moiety  of  the  profits,  that  would 
not  make  him  a  tenant  in  common ;  for  a  man  cannot 
disseise  another  of  an  undivided  moiety,  as  he  may  of 
such  a  number  of  acres,  (a) 

From  the  principle  that  the  possession  of  one  joint 
tenant,  parcener,  or  tenant  in  common,  is  primd  facie 
the  possession  of  his  companion  also,  (6)  it  follows, 
that  the  possession  of  the  one  can  never  be  considered 
as  adverse  to  the  title  of  the  other,  unless  it  be  at- 
tended by  circumstances  demonstrative  of  an  adverse 
intent ;  or,  in  other  words,  whenever  one  joint  tenant, 
tenant  in  common,  or  parcener,  is  in  possession, 
his  fellow  is  in  contemplation  of  law  in  possession 
also,  and  it  is  necessary  to  prove  an  actual  ouster  to 
rebut  this  presumption. 

Some  ambiguity,  indeed,  seems  formerly  to  have 
prevailed  as  to  the  meaning  of  the  word  actual  ouster, 
as  though  it  signified  some  act  accompanied  by  real 
force ;  (c)  but  it  is  now  clear,  that  a"n  actual  ouster 
may  be  inferred  from  circumstances,  which  circum- 
stances are  matter  of  evidence  to  be  left  to  the  jury. 
Thus,  thirty-six  years  sole  and  uninterrupted  posses- 
sion by  one  tenant  in  common,  without  any  account  to, 
demand  made,  or  claim  set  up  by  his  companion,  was 

(a)  Reading   v.    Rawsterne,  Ld.     v.  Keen,  7T.R.386. 

Itaym.  829.  (c)  Fairclaim  t/.  Fowler  u.Shackle- 

(b)  Ford  v.  Gray,  Salk.  285.  Sniales     ton,  Burr.  2G04. 
v.  Dale,  Hub.  120.    Doe  d.  Barnet 


ACTION    OF    EJECTMENT.  55 

held  to  be  sufficient  ground  for  the  jury  to  presume 
an  actual  ouster  of  the  co-tenant,  and  they  did  so 
presume,  (a) 

So  also,  if  upon  demand  by  the  co-tenant  of  his 
moiety,  the  other  refuse  to  pay,  and  deny  his  title, 
saying  he  claims  the  whole,  and  will  not  pay,  and 
continue  in  possession,  such  possession  is  adverse, 
and  ouster  enough  (6).  And  in  like  manner  where 
there  were  two  joint  tenants  of  a  lease  for  years,  and 
one  bade  the  other  go  out  of  the  house,  and  he 
went  out  accordingly,  this  was  held  to  be  an  actual 
ouster,  (c) 

Upon  the  same  principle,  although  the  en  ry  of 
one  is,  generally  speaking,  the  entry  of  both,  yet  if 
he  enter  claiming  the  whole  to  himself,  it  will  be  an 
entry  adverse  to  his  companion,  (c)  But  where  there 
was  no  circumstance  to  induce  a  supposition  of 
an  actual  ouster,  but  a  bare  perception  of  the  profits 
by  one  tenant  in  common  for  twenty-six  years,  the 
possession  was  held  not  to  be  adverse,  (d)  And 
where  a  tenant  in  common  levied  a  fine  of  the  whole 
premises,  and  afterwards  took  all  the  rents  and 
profits  for  four  or  five  years,  but  it  did  not  appear 
that  he  held  adversely  at  the  time  of  levying  the 
fine,  it  was  held  that  such  fine  and  receipt  were 


(a)  Doe    d.   Fisher  v.    Prosser,  Bird,  11  East.  49. 

Cowp.  217.  (c)  Vin.  Ab.  v.  14, 512. 

(6)    Doc  d.   Fisher  v.   Prosser,  (d)  Fairclaimrf. Fowler ».  Shackle- 

Cowp.  217.      Doe   d.  ilellings   v.  ton,  5  Burr.  260-1. 


56  OF    THE    TITLE,  &C.   IN    THE 

not   sufficient   evidence  of    an   ouster   of  his   com- 
panion, (a) 

If,  however,  in  cases  of  joint  tenancy,  &c.  there 
be  sufficient  evidence  of  an  actual  ouster,  the  statute 
will  run  as  in  other  cases. 

Upon  the  principles  here  established,  the  posses- 
sion of  one  heir  in  gavelkind  is  not  the  possession  of 
the  other,  if  he  enter  with  an  adverse  intent  to  oust 
the  other,  (h) 

If  an  estate  descend  to  parceners,  one  of  whom 
is  under  a  disability,  which  continues  more  than 
twenty  years,  and  the  other  does  not  enter  within 
twenty  years,  the  disability  of  the  one  does  not  pre- 
serve the  title  of  the  other  after  the  twenty  years 
have  elapsed,  (c) 

Fourthly,  when  the  possessor  has  acknowledged 
a  title  in  the  claimant. 

Thus,  where  a  lease  for  a  long  term  had  been 
granted,  by  the  lord  of  the  manor,  to  the  rector,  in 
which  the  lessee  covenanted  for  himself,  his  executors, 
and  assigns,  to  pay,  during  the  continuance  of  the 
term,  a  certain  annual  rent,  and  also  all  the  tithe 
straw  of  wheat  and  rye  within  the  parish,  and  the  les- 
see and  his  assigns  (the  succeeding  rectors)  continued 

(a)  Peaceable  d.  Hornblower  v.  (b}  Davenport  v  Tyrrell,  Blk.G75. 
Read,  1  East.  568,  574,  sed  vide  (c)  Roe  d.  Langdon  v.  Rowlstou, 
Story  v.  Windsor,  2  Atk.  630,  632.  2  Taunt.  441. 


ACTION    OF    EJECTMENT.  57 

in  possession  for  twenty  years  and  upwards  after  the 
expiration  of  the  term,  without  payment  of  rent,  but 
during  that  twenty  years  suffered  the  heir  of  the 
lessor  to  take  the  tythe  of  the  wheat  and  rye  straw ; 
it  was  held,  that  such  sufferance  was  evidence  of 
an  agreement  between  the  lessor  and  lessee,  or 
their  heirs  and  assigns  respectively,  that  the  les- 
see, or  his  assigns,  should  continue  his  possession, 
if  the  lessor,  and  his  heirs,' were  permitted  to  receive 
the  tithe  as  before,  and  that  consequently  there 
was  no  adverse  holding  in  the  assignee  of  the 
lessee,  (a) 

To  enable  a  party  to  take  advantage  of  the  exten- 
sion of  time  granted  by  the  second  section  of  this 
statute,  it  is  necessary  that  the  disability  to  enter 
should  exist  at  the  time  when  his  title  accrued,  for  if 
he  had  the  power  to  enter,  but  for  an  instant,  no  sub- 
sequent disability  will  be  sufficient  to  arrest  the  ope- 
ration of  the  statute.  And  the  principle  is  the  same 
where  a  disability,  existing  at  the  time  of  the  com- 
mencement of  the  title,  is  afterwards  removed,  and 
a  subsequent  disability  ensues ;  the  statute  con- 
tinuing to  run,  notwithstanding  the  second  disability. 
It  was  once,  indeed,  endeavoured  to  distinguish  be- 
tween cases  of  voluntary  and  involuntary  disability 
in  this  respect,  and  to  maintain  that  an  involuntary 
disability,  as  insanity,  occurring  after  the  statute  had 
begun  to  run,  would  suspend  its  progress,  but  the 
argument  was  over-ruled,  upon  the  principle  that 
a  different  construction  had  always  been  given  to  all 

(a)  Roe  d.  Pellat  v.  Ferrars,  1  Bos.  and  Pull.  542. 


58  OF    THE    TITLE,  &C.  IN    THE 

the  statutes  of  limitations,  and  that  such  nice  dis- 
tinctions would  be  productive  of  mischief,  (a) 

It  was  said,  by  Lord  Chancellor  Hardwicke,  that 
if  a  man,  both  of  non-sane  memory  and  out  of  the 
kingdom,  come  into  the  kingdom,  and  then  go  out 
of  the  kingdom,  his  non-sane  memory  continuing, 
his  privilege,  as  to  being  out  of  the  kingdom,  is 
gone;  and  his  privilege,  as  to  non-sane  memory, 
will  begin  from  the  time  he  returns  to  his  senses.  (6) 

When  the  ancestor  to  whom  the  right  first  accrues, 
dies  under  a  disability  which  suspends  the  operation 
of  the  statute,  his  heir  must  make  his  entry  within  ten 
years  next  after  his  ancestor's  death,  provided  more 
than  twenty  years  have  elapsed  from  the  time  of  the 
commencement  of  the  ancestor's  title,  to  the  time  of 
the  expiration  of  the  ten  years,  (c) 

It  was  once  indeed  contended  that  the  meaning  of 
this  second  section  of  the  statute  was,  to  allow  eyery 
person  at  least  twenty  years  after  their  title  accrued, 
if  there  were  a  continuing  disability  from  the  death  of 
the  ancestor  last  seized,  and  ten  years  more  to  the  heir 
of  the  person  dying  under  a  disability,  which  ten 
years  were  in  addition  to  the  twenty  years  allowed  by 
the  first  clause.  But  it  was  justly  observed  by  the 
court,  that  if  this  construction  obtained  there  was  no 
calculating  how  far  the  statute  might  be  carried  by 

(a)  Doe   d.   Duroure    v.  Jones,  (6)  Sturt  v.  Mellish,  2  Atk.  610, 

4  T.  11.  300;  el  vide  Stowcll  v.  Ld.  614. 

Zouch,    Tlow.    366.     Cotterell  v.  (r)  Doe  d.  George  v.  Jesson,  6 

Dutton,  4  Taunt.  826.  East.  80. 


ACTION    OF    EJECTMENT.  59 

parents  and  children  dying  under  age,  or  continuing 
under  other  disabilities  in  succession ;  that  the  word 
death  in  the  second  clause  meant  and  referred  to  the 
death  of  the  person  to  whom  the  right  first  accrued, 
and  was  probably  introduced  in  order  to  obviate  the 
difficulty  which  had  arisen  in  the  case  of  Stowell  v. 
Lord  Zouch,  (a)  upon  the  construction  of  the  statute 
of  fines  from  the  omission  of  that  word  ;  and  that  the 
statute  meant  that  the  heir  of  every  person,  to  which 
person  a  right  of  entry  had  accrued  during  any  of  the 
disabilities  there  stated,  should  have  ten  years  from 
the  death  of  his  ancestor,  to  whom  the  right  first  ac- 
crued during  the  period  of  disability,  and  who  died 
under  such  disability,  notwithstanding  the  twenty 
years,  from  the  first  accruing  of  the  title  to  the  an- 
cestor, should  have  before  expired.  (6) 

Having  thus  discussed  the  general  principles  of  the 
action,  that  a  claimant  in  ejectment  must  have  both 
the  legal  and  possessory  title,  the  particular  persons, 
who,  by  reason  of  their  estate  and  interest  in  the 
lands,  are  entitled  to  this  action,  must  next  be  consi- 
dered; remembering  always,  that  a  right  of  entry  or 
possession  is  supposed  to  accompany  their  legal  title. 

1.  TENANT  FOR  YEARS — FOR  LIFE — IN  TAIL — OR 
IN  FEE. 

It  has  been  said  by  a  learned  writer,  that  a  tenant 
for  years  cannot  before  entry  maintain  an  action  of 

(«)  Plow.  366.  East.oO. 

(/>)   Doe   d.   George    v  Jesson,    6 


60 


OF    THE    TITLE,  &C.    IN    THE 


trespass,  or  ejectment ;  because  those  acts  complain 
of  a  violation  of  the  possession,  and  therefore  cannot 
be  maintained  by  any  person  who  has  not  had  an  ac- 
tual possession ;  (a)  but  this  reasoning  does  not  seem 
applicable  to  the  modern  principles  of  the  remedy  by 
ejectment.  (£) 

2.  MORTGAGEE. 

After  the  mortgage  becomes  forfeited,  the  mort- 
gagee may  immediately  proceed  by  ejectment  against 
the  mortgagor,  without  any  notice  or  demand  of 
possession,  (c) 

If  the  party  in  possession  is  not  the  mortgagor  him- 


(a)  1    Cru.    Dig.     248.  et  vide, 
4  Bac.  Ab.  183. 

(b)  Goodright  d.  Hare  v.  Cator, 
Doug.  477,  86. 

(c)  Doe  d.  Fisher  v.  Giles,  5  Bing. 
421,  S.C.  2  M.  &  P.  49.— The  diffi- 
culties with  which  the  courts  have 
been  beset,  in  defining  the  situation 
of  a  mortgagor  in  possession,  after  a 
forfeiture    of  the    mortgage,  with 
respect  to  his  mortgagee,  are  curious. 
In  Moss  v.  Gallimore,  Doug.  279, 
82,  Lord  Mansfield  says,  "  He  is 
not  properly  a  tenant  at  will  to  the 
mortgagee ;  he  is  like  a  tenant  at 
will."    In  Buck  v.  Wright,  1  T.  R. 
381,  Ashurst,  J.  says,    "  a  mort- 
gagor is  as  much,  if  not  more  like 
a  receiver  than  a  tenant  at  will  : 
in  truth,  he  is  not  either;"    and 
again, "Mortgagors and  mortgagees 
are  characters  as  well  known,  and 


their  rights,  powers,  arid  interests, 
as  well  settled,  as  any  in  the  law." 
In  Partridge  v.  Ball,  5  B.  &'A.  604,  it 
is  said,  Per  Curiam, "  a  mortgagor  is 
a  tenant  within  the  strictest  defi- 
nition of  that  word  ;"  and  the  learn- 
ed reporter  commences  a  long  note 
on  the  case  reported,  with  this  sen- 
tence, "As  long  as  the  mortgagor 
or  his  heir  is  in  possession  of  the 
land,  and  the  legal  ownership  is  in 
the  mortgagee,  there  must  subsist  a 
tenancy  between  the  parties;" whilst 
in  Doe  d.  Robey  v.  Maisey,  8  B.  & 
C.  767,  Lord  Tenterden  says,  "  The 
mortgagor  is  not  in  the  situation  of 
tenant  at  all,  or  at  all  events,  he  is 
not  more  than  a  tenant  at  sufferance, 
but  in  a  peculiar  character,  and  lia- 
ble to  be  treated  as  tenant  or  as  tres- 
passer at  the  option  of  the  mort- 
gagee." 


ACTION    OF    EJECTMENT.  61 

self,  but  a  person  claiming  under  a  lease  granted  by 
the  mortgagor  prior  to  the  mortgage,  the  mortgagee 
will  be  bound  by  it;  (a]  but  if  the  lease  be  made  sub- 
sequently to  the  mortgage,  without  the  privity  of  the 
mortgagee,  it  will  be  no  defence  to  an  ejectment 
brought  by  the  mortgagee;  because  the  mortgagor 
has  no  power  to  let  leases  not  subject  to  every  cir- 
cumstance of  the  mortgage,  (b)  The  principle  extends 
also  to  cases  where  the  party  in  possession  is  tenant 
from  year  to  year  to  the  mortgagor,  (c) 

If  the  mortgagee  assign  the  mortgage,  and  the 
assignee  assign  to  another,  the  last  assignee  may 
maintain  ejectment  for  the  mortgaged  premises,  (d) 

If  there  be  two  several  mortgages  of  the  same 
lands,  the  mortgagee  who  has  the  legal  estate  will  be 
entitled  to  recover  in  an  ejectment  against  the  other 
mortgagee,  although  his  mortgage  be  posterior  in 
point  of  time,  (e) 

3.  LORD  OF  A  MANOR. 

When  the  tenant  of  copyhold  premises  has  com- 
mitted an  act  by  which  he  forfeits  his  lands,  he  who 
is  lord,  at  the  time  of  the  forfeiture  committed,  may 
maintain  an  ejectment  for  the  recovery  of  them ;  but 
this  right  is  confined  to  the  lord  for  the  time  being, 
unless  the  act  of  forfeiture  destroy  the  estate,  and 

(a)  Doe  d.  Da  Costa  v.  Wharton,  cher,  3  East.  449. 

ST.R.2.  (d)  Smartle  v.   Williams,  Salk. 

(6)  Kecch   d.    Warne    v.    Hall,  245. 

Doug.  21.  (e)  Goodtitle  d  Norris  v.  Morgan, 

(c)   Thunder  d.  Weaver  v.  Bel-  IT.  11.755. 


62  OF    THE    TITLE,  &£.    IN    THE 

then  the  heir  of  the  lord,  in  whose  time  it  was  com- 
mitted, may  also  take  advantage  of  it.  (a) 

Where,  however,  a  copyholder,  holding  of  a  manor 
belonging  to  a  bishopric,  committed  a  forfeiture  by 
felling  timber  during  the  vacancy  of  the  see,  the  suc- 
ceeding bishop  was  allowed  to  maintain  an  ejectment 
against  him.  (b) 

The  right  of  the  lord  to  maintain  ejectment  against 
his  copyholder,  for  a  forfeiture  by  committing  waste, 
will  not  be  taken  away  by  an  intermediate  estate  in 
remainder,  between  the  life  estate  of  the  copyholder 
and  the  lord's  reversion ;  for  if  it  were,  the  tenant 
for  life,  and  remainder-man,  by  combining  together, 
might  strip  the  inheritance  of  all  the  timber,  (c) 

When  an  inclosure  has  been  made  from  the  waste 
for  twelve  or  thirteen  years,  and  seen  by  the  stew- 
ard of  the  same  lord  from  time  to  time  without  objec- 
tion made,  it  may  be  presumed  by  the  jury  to  have 
been  made^  by  the  licence  of  the  lord,  and  an  ejectment 
cannot  be  maintained  by  him  against  the  tenant  with- 
out a  previous  notice  to  throw  it  up.  (cf) 

It  has  never  been  expressly  decided  whether  the 
statute  of  limitations  will  run  against  the  lord,  in  case 
of  a  forfeiture  by  a  copyholder,  and  bar  his  taking 
advantage  of  it  after  a  lapse  of  twenty  years ;  but 


(a)  Wat.  Copy.  vol.  1. 324  to  353.  (c)  Doe  d.  Folkes  v.  Clements,  2 

Doe  d.  Tarrant  v.  Hellier,  3  T.  R.  Maul.  &  Sel.  68. 

162.  (d}  Doe  d.  Foley  v.  Wilson,  11 

(6)  B.  N.  P.  107.  East.  56.      .- 


ACTION    OF    EJECTMENT.  63 

from  the  language  of  Lord  Kenyon,  C.  J.  in  the  case 
of  Doe  {/.  Tarrant  v.  Hellier,  it  seems  that  its  provi- 
sions would  be  applicable  to  this  as  well  as  to  all 
other  rights  of  entry,  (a) 

4.  COPYHOLDER. 

Whilst  the  ancient  practice  of  the  action  of  eject- 
ment prevailed,  it  seems  to  have  been  holden,  that 
a  copyholder  could  not  maintain  an  ejectment,,  upon 
a  demise  for  a  longer  term  than  a  year,  unless  the 
licence  of  the  lord  were  first  obtained,  or  a  special 
custom  existed  in  the  manor  enabling  him  to  make 
longer  leases  :  and,  in  some  authorities,  it  is  even 
doubted,  whether  an  ejectment  can  in  any  case  be 
supported  by  a  copyholder,  (b)  But  since  the  intro- 
duction of  the  modern  practice,  these  objections  are 
wholly  obviated,  and  the  common  consent  rule  is 
now  sufficient  to  enable  a  copyholder  to  maintain 
ejectment. 

A  copyholder  who  claims  by  descent  as  heir,  may 
maintain  ejectment  without  admittance,  as  his  title  is 
complete  ngainstall  the  world,  except  the  lord,  imme- 
diately upon  the  death  of  the  ancestor ;  (c)  but  if 
it  be  necessary  for  him  to  proceed  against  the  lord  for 
a  seizure  on  the  death  of  the  ancestor,  he  must  prove  that 
he  has  tendered  himself  to  be  admitted  at  the  lord's 


(a)  3  T.  R.  162—172.  Eastcourt  v.  Weeks,  1  Lut.  799— 

(6)  Stephens  v.  Eliot,  Cro.  Eliz.  803. 

483.    Goodwin  v.  Longhurst,  Cro.  (c)   Rex.   v    Rennett,   2.  T.   R. 

Eliz.  535.     Sparks'  case,  Cro.  Eliz.  197. 
67C.  Downingham'scase,()wen,17. 


64  OF    THE    TJTLE,    &C.    IN    THE 

court,  or  that  the  lord  has  done  some  act  dispensing 
with  such  tender,  (a) 

When  also  the  lord  grants  a  reversion  of  a  copy- 
hold expectant  on  a  life  estate,  as  the  grantee  ac- 
quires a  perfect  title  by  the  grant  only,  he  may  on  the 
termination  of  the  life  estate  maintain  ejectment 
without  admittance,  (b) 

But  in  all  cases  where  the  copyholder  claims  as 
surrenderee,  (c)  as  the  surrender  and  admittance 
make  but  one  conveyance,  (d)  the  legal  title  does  not 
vest  in  the  surrenderee,  and  of  course  he  cannot 
maintain  ejectment,  until  after  admittance;  but 
when  admitted,  the  title  relates  back  to  the  time 
of  the  surrender,  against  all  persons  but  the  lord  ; 
and  therefore  a  surrenderee  may  recover  in  eject- 
ment against  his  surrenderor,  or  a  stranger,  upon 


(a)  Doe  d.  Burrell  v.  Bellamy,  2  cients,  to  the  intent  that  they  shall 

M.  &  S.  87.  grant   the    said    chambers   to   the 

(fc)  Roe  rf.  Cash  v.  Loveless,  2  transferree ;  which  subsequentgrant 

B.  &  A.  453.  is  never  in  point  of  fact  made,  but 

(c)  In  the  case  of  Doe  d,  Warry  simply  an  entry  of  admittance  in- 
v.  Miller,  (1  T.  R.  3U3,)  it  was  en-  serted  in  the  Society's  books.  It 
deavoured  to  assimilate  to  copyhold  is  therefore  evident,  that  after  the 
principles,  the  practice  of  the  So-  first  surrender,  the  legal  estate  al- 
ciety  of  New  Inn,  in  granting  out  ways  remains  in  the  Treasurer  and 
their  chambers  for  lives.  It  is  cus-  Ancients,  as  trustees  for  the  sub- 
tomary  with  that  Society,  in  such  sequent  tranferrees  respectively,  and 
grants,  to  insert  a  clause,  that  the  that  the  terms  surrender  and  ud- 
tenant  shall  not  sell  or  assign,  wiih-  miltance  bear  not  the  slightest  re- 
out  the  licence  of  the  Society,  and  semblance  in  their  meaning,  to  the 
for  the  grantees,  when  they  wish  to  surrender,  and  admittance  to  copy- 
transfer  their  interest,  to  surrender  hold  premises, 
the  chambers  (upon  a  proper  deed  (d)  Roe  d.  Jeffereys  v.  Hicks,  2 
stamp)  to  the  Treasurer  and  An-  Wils.  13.  15. 


ACTION    OF    EJECTMENT.  65 

a  demise  laid  between  the  times  of  admittance 
and  surrender,  provided  the  admittance  be  made 
before  the  day  of  the  trial,  (a) 

Where  the  devisee  of  a  customary  estate,  which 
had  been  surrendered  to  the  use  of  the  will,  died 
before  admittance,  it  was  holden  that  her  devisee, 
though  afterwards  admitted,  could  not  recover  in 
ejectment ;  for  the  admittance  of  the  second  devisee 
had  no  relation  to  the  last  legal  surrender,  and  the 
legal  title  remained  in  the  heir  of  the  last  sur- 
renderor, (b) 

5.  LESSEE  OF  A  COPYHOLDER. 

If  a  copyholder,  without  licence,  make  a  lease  for 
one  year,  or,  with  licence,  make  a  lease  for  many 
years,  and  the  lessee  be  ejected,  he  shall  not  sue  in 
the  lord's  court  by  plaint,  but  shall  have  an  ejectment 
at  the  common  law  ;  because  he  has  not  a  customary 
estate  by  copy,  but  a  warrantable  estate  by  the  rules 
of  common  law.  (c) 

6.  WIDOW  FOR  HER  FREE-BENCH. 

(a)  Holdfast </.  Woollhamst;.  Clap-  should  seem,  since  the  legal  estate 

ham,  1  T.  R.  600.     Doe  d.  Ben-  remains  in  the  surrenderor  until  the 

ningtou   v.    Hall,    16    East.  208.  time  of  admittance,  that  this  doc- 

Ashurst  J.in  delivering  the  judgment  trine  is  not  applicable  to  the  present 

of  the  court  in  Holdfast  d.  VVooll-  principles  of  the  action.     Vide  Doe 

hams  v.  Clapham,  was  of  opinion  d.  Da  Costa  v.  Wharton,  8  T.  R.  2. 

that  the  surrenderee  might  maintain  B.  N.  P.  109. 

ejectment  against  his  surrenderor,  (*)  Doe  d.  Vernon  v.  Vernon,  7 

although   not  admitted  before  the  East.  8. 

trial,  because  the  surrenderor  is  but  (c)  Co.  Copy.  s.  5.     Goodwin  v. 

a  trustee  to  hit  surrenderee ;  but  it  Longhurst,  Cro.  Eliz.  535. 

»       F 


66  OF    THE    TITLE,    &C.    IN    THE 

When  there  is  a  custom  in  a  manor  that  the  widow 
shall  enjoy,  during  her  widowhood,  the  whole,  or 
part  of  the  customary  lands,  wherewith  her  husband 
died  seized,  as  of  free-bench,  she  may,  after  chal- 
lenging her  right,  and  praying  to  be  admitted,  (a) 
maintain  ejectment  for  them  without  admittance,  even 
against  the  lord  ;  because  it  is  an  excrescence  which, 
by  the  custom  and  the  law,  grows  out  of  the 
estate.  (6) 

But  if  the  widow's  claim  be  in  the  nature  of  dower, 
an  ejectment  will  not  lie  before  assignment,  (c)  but 
she  must  levy  a  plaint  in  the  nature  of  a  writ  of 
dower,  in  the  lord's  court, 


7.  GUARDIAN  IN  SOCAGE,  (e)  or  TESTAMENTARY 
GUARDIAN  appointed  pursuant  to  the  statute  12  Car. 
II.  c.  24.  s.  8.  (/) 

But  a  guardian  for  nurture  cannot  maintain  eject- 
ment, for  he  cannot  make  leases  for  years,  either 
in  his  own  name,  or  in  the  name  of  the  infant; 
because  he  has  only  the  care  of  the  person,  and 
education  of  the  infant,  and  has  nothing  to  do  with 
the  lands  merely  in  virtue  of  his  office,  (g] 

(a)  Co.  Copy.  s.  5.     Goodwin  v.  184. 

Longhurst,  Cro.  Eliz.  535.  (e)  Litt.  sec.  123,  124.      Wade  v. 

(6)  Doe  d.  Burrell  v.  Bellamy,  Cole,  Ld.  Raym.  130. 

2  M.  &  S.  87.  (/)  Bedell  v.  Constable,  Vaugh. 

(c)  Jurdan  v.  Stone,  Hutt.   18.  177.      Doe  d.  Parry  v.   Hodgson, 
Howard  v.  Bartlett,  Hob.  181.  Doe  2  Wils.  129. 

d.  Nutt  v.  Nutt,  2  C.  &  P.  430.  (g)  Ratcliff's  case,  3  Co.  37. 

(d)  Chapman  v.  Sharpe,  2  Show. 


ACTION    OF    EJECTMENT.  67 

8.  INFANT,  (a) 

It  is  difficult  to  discover  any  principle  upon  which 
both  infant  and  guardian  can  have  the  power  of 
maintaining  ejectment  for  the  same  lands,  unless, 
indeed,  the  power  of  the  infant  be  limited  to  those 
cases,  in  which  no  testamentary  guardian  has  been 
appointed,  and  the  infant  is  either  above  the  age 
of  fourteen  years,  or,  being  under  that  age,  has  had 
no  person  to  take  upon  himself  the  office  of  guardian 
in  socage.  No  case,  certainly,  can  be  found  in  which 
this  distinction  has  been  taken,  but  it  is  not  incon- 
sistent with  the  doctrine  respecting  guardians  in 
socage,  and  accords  most  fully  with  the  established 
principles  of  the  action  of  ejectment. 

9.  ASSIGNEE  OF  A  BANKRUPT,  (b)  or   INSOLVENT 
DEBTOR,  (c) 

As  all  the  bankrupt's  property,  real  and  personal, 
is  vested  in  the  assignees  by  the  statute  13  Eliz.  c.  7. 
ss.  1,2,  it  follows  of  course,  that  they  must  be  in- 
vested with  all  the  power  necessary  to  obtain  pos- 
session of  it ;  and  the  general  assignment  gives  them 
a  title  to  all  the  leaseholds  (except  for  lives)  belonging 
to  the  bankrupt,  whether  the  same  be  in  his  posses- 
sion at  the  time  of  the  bankruptcy,  or  acquired  by  him 

(a)Rudstonv.Yates,  March.  141.         (6)  Beck  "d.  Hawkins  v.  Welsh, 
Zouch  v.  Parsons,  Burr.  1794.  1806.      1  Wils.  276. 
Noke   v.    Windham,    Stran.   694.         (c)  Doe  d.  Clarke  v.  Spencer,  3 
Maddon  d.  Baker  v.  White,  2  T.  R.      Bing.  203.  370. 
159. 

F   2 


68  OF    THE    TITLE,  &C.    IN    THE 

afterwards.  But  with  respect  to  the  freehold  lands 
of  the  bankrupt,  they  do  not  pass  by  such  assignment, 
but  must  by  the  provisions  of  the  statute  of  Elizabeth 
be  conveyed  by  the  commissioners  by  deed  indented 
and  enrolled ;  and  until  the  enrolment  as  well  as  the 
bargain  and  sale  is  completed,  the  assignees  cannot 
maintain  ejectment.  The  bargain  and  sale  also  only 
affects  the  lands  to  which  the  bankrupt  is  entitled  at 
the  time  of  its  execution ;  if  he  acquire  any  future 
real  estates,  there  must  be  a  new  bargain  and  sale  to 
vest  the  legal  estate  in  the  assignees,  (a) 

When  a  trader  being  seized  of  an  estate  for  life, 
with  a  general  power  of  appointment,  with  remain- 
der in  default  of  appointment  to  himself  in-fee,  after 
he  had  committed  an  act  of  bankruptcy,  executed  his 
appointment  in  favour  of  an  appointee,  and  was  then 
declared  a  bankrupt,  and  assigned  the  premises  by 
bargain  and  sale  to  his  assignee ;  it  was  held  that  the 
appointment  was  void,  and  that  the  assignee  had  a 
sufficient  legal  title  to  maintain  ejectment.  (£) 

A  difference  prevails  between  cases  of  bankruptcy 
and  insolvency,  where  the  party  is  possessed  of  a 
term  of  years.  In  the  former  case,  the  term  does 
not  pass  by  the  assignment  of  the  commissioners  to 
the  assignees,  unless  they  elect  to  accept  it;  and 
if  they  decline  to  accept,  the  term  will  remain  in 
the  bankrupt,  as  though  no  commission  had  issued, 
unless  he  deliver  up  the  lease  within  fourteen  days 

(a)  Ex  parte  Proudfoot,   1  Atk.      B.  &  A.  93.    Vide  6  Geo.  IV.  c.  16. 
252.  Esp.  N.  P.  431.  s.  81. 

(6)   Doe  d.  Coleman  v.  Britain,  2 


ACTION    OF    EJECTMENT.  69 

to  the  lessor,  and  he  may  maintain  ejectment,  if 
ousted,  notwithstanding  his  bankruptcy.  But  in  the 
case  of  an  insolvent  debtor,  the  term  vests  absolutely 
in  the  provisional  assignee  by  the  assignment  to  him ; 
and  if  the  assignee  subsequently  appointed  should 
elect  not  to  accept  the  term,  it  will  not  revert  to  the 
insolvent,  but  the  lessor  must  make  his  application  to 
the  Insolvent  Court,  who  have  power  to  make  such 
order  therein  as  they  shall  deem  just,  (a) 

10.  CONUSEE    OF    A     STATUTE-MERCHANT    OR    STA- 
PLE, (b} 

11.  TENANT  BY  ELEGIT. 

It  is  laid  down  in  the  case  of  Lowthal  v.  Tomkins, 
(c)  that  if  a  tenant  by  elegit  desire  to  obtain  achml 
possession  of  the  lands,  he  must  bring  an  ejectment, 
for  the  sheriff  under  the  writ  delivers  only  the  legal 
possession ;  which  doctrine  is  recognized  by  Lord 
Kenyon,  C.  J.  in  the  case  of  Taylor  v.  Cole;  (d)  but 
in  the  case  of  Rogers  v.  Pitcher,  (e)  it  is  said  by 
Gibbs,  C.  J.  "I  am  aware  that  it  has  in  several  places 
been  said,  that  the  tenant  in  elegit  cannot  obtain  pos- 
session without  an  ejectment,  but  1  have  always  been 
of  a  different  opinion.  There  is  no  case  in  which  a 
party  may  maintain  ejectment  in  which  he  cannot 

(a)  6  Geo.  IV.  c.  16.  s.  75.  7.  Geo.  C.  &  P.  526. 

IV.c.57.8.  23.lWm.IV.Doed.Pal-  (b)  Co.  Litt.  42.  a.     Hammond 

mer  v.  Andrews, 4  Bing.  348.  Doe  d.  v.  Wood,  Salk.  563. 

Clarke  v.  Spencer,  3  Bing.  203,  370.  (c)  2  Eq.  Ca.  Ab.  380, 

Copeland  v.  Stephens,  1  B.  &A.  593.  (d)  3  T.  R.  295. 

Crofts  v.  Pick,  8  Moore,  384;  S.C.  (e)  6  Taunt.  202. 
1  Bing.  154.  Lindsay  v.  Limbert,  2 


70  OF    THE    TITLE,    &C.    IN    THE 

enter.  The  ejectment  supposes  that  he  has  entered  ; 
and  that  the  lessor  may  do  it  by  another,  and  not 
enter  himself,  is  not  very  intelligible.  I  would  not, 
however,  consider  the  present  case  as  now  deciding 
these  points  which  I  only  throw  out  in  answer  to  the 
argument  that  has  been  used."  («) 

When  a  tenant  in  possession  claimed  under  a  lease 
granted  prior  to  the  date  of  the  judgment  against  his 
lessor,  it  was  held  that  the  tenant  by  elegit  could  not 
recover  in  ejectment;  because  the  lessee's  title  being 
prior  in  point  of  time,  the  legal  estate  was  in  him ;  (5) 
but  where  the  possession  of  the  tenant  was  subsequent 
to  the  date  of  the  judgment,  although  prior  by  two 
years  to  the  issuing  of  the  writ  of  elegit  and  inquisi- 
tion thereon,  the  title  of  the  tenant  by  elegit  was  not 
barred,  (c)  If,  however,  the  tenant  does  not  himself 
claim  this  protection,  but  suffers  judgment  by  default, 
it  will  not  avail  the  judgment  debtor,  though  he  may 
appear  as  landlord  and  defend  the  action,  (d) 

12.  PERSONAL  REPRESENTATIVE,  (e) 

This  right  is  of  course  confined  to  those  lands 
which  the  testator,  or  intestate,  held  for  a  term  of 
years;  but  it  is  immaterial  whether  the  ouster  be 
after,  or  before  the  death  of  the  testator,  or  intes- 
tate, (f) 

(a)  6  Taunt.  202.  (d)  Doe  d.  Cheese  v.  Creed,    2 

(6)  Doe  d.  Da  Costa  v.  Wharton,  M.  &  P.  648. 

8  T.  R.  2.  (e)  4  Edw.  III.  c.  7. 

(c)  Doc  d.  Putlaiid  v.  Hilder,  2  B.  (/)  Slade's  case,  4  Co.  92,  95,  (a). 

&  A-  782-  Doe  d.  Shore  v.  Porter,  3  T.  R.  13. 


ACTION    OF    EJECTMENT.  71 

Personal  representatives  may  recover  in  ejectment 
under  the  statute  29  Car.  II.  c.  3.  s.  12,  appropriat- 
ing- estates  held  pur  autre  vie  where  there  is  no 
special  occupant.  But  this  statute  does  not  extend  to 
copyholds,  and  therefore  one  who  was  admitted  te- 
nant upon  a  claim  as  administrator  de  bonis  non  to 
the  grantee  of  a  copyhold  pur  autre  vie,  was  not  per- 
mitted to  maintain  ejectment,  (a) 

13.  DEVISEE. 

Where  the  devise  is  of  a  freehold  interest,  the 
devisee  may  immediately,  and  without  any  posses- 
sion, maintain  ejectment  for  the  lands  devised;  (6) 
but  if  it  be  a  legacy  of  a  term  of  years,  he  must  first 
obtain  the  assent  of  the  executors  to  the  bequest,  (c) 
When,  however,  such  assent  is  obtained,  the  legal 
estate  vests  absolutely  in  the  legatee,  and  he  may 
maintain  ejectment  against  the  executor,  as  well  as 
against  a  stranger,  (d) 

14.  GRANTEE  OF  A  RENT-CHARGE,  having  power 
to  enter  upon  the  lands,  if  the  rent  be  in  arrear,  and 
hold  them  until  satisfaction,  (e) 

These  rights  of  entry  are  always  taken  strictly ; 
and  where  a  man  gave  a  leasehold  estate  by  will  to 
J5.,  his  executors,  &cc.,  subject  to  a  rent-charge  to  his 
wife  during  her  widowhood,  with  a  power  to  the 

(a)  Zouch  d.  Forse  v.  Forse,  7  (rf)  Doe  d.  Lord  Say  and  Sele  v. 

East.  186.  Guy,  3  East.  120. 

(6)  Co.  Litt.  240,  (6).  (e)  Jemott  v.  Cowley,  1  Saund. 

(c)  Young  v.  Holmes,  Stran.  70.  112. 


72  OF    THE    TITLE,    &,C.    IN    THE 

widow  to  enter  for  non-payment  of  rent,  and  to  en- 
jo)',  &c.  until  the  arrears  were  satisfied,  and  in  case 
of  the  widow's  marriage.,  he  willed  that  B.  should  pay 
the  rent-charge  to  C.,  his  executors,  administrators, 
and  assigns,  it  was  holden  that  C.'s  executors,  after 
the  widow's  marriage,  and  C.'s  subsequent  death,  had 
no  right  of  entry  for  non-payment  of  the  rent- 
charge,  (a) 

15.  ASSIGNEE  OF  THE  REVERSION,  upon  a  Right  of 
Re-entry  for  Condition  broken.  (£) 

By  the  common  law,  no  one  could  take  advantage 
of  a  condition,  or  covenant,  but  the  immediate  grantor, 
or  his  heirs ;  a  principle  consistent  with  the  old 
feudal  maxims,  but  highly  injurious  to  the  rights  of 
grantors,  when  the  practice  of  alienating  estates  be- 
came general,  and  leases  for  years  a  valuable  pos- 
session. To  remedy  this  evil,  it  is  enacted  by  the 
32  Hen.  VIII.  c.  34,  that  the  grantees,  or  assignees 
of  a  reversion  shall  have  the  same  rights  and  ad- 
vantages, with  respect  to  the  forfeitures  of  estates,  as 
the  heirs  of  individuals,  and  the  successors  of  cor- 
porations, had  until  that  time  solely  enjoyed;  and 
this  statute  is  made  most  general  in  its  operation,  by 
particularly  including  the  grants  from  the  Monarch 
of  those  lands,  which  had  then  recently  become  the 
property  of  the  crown  by  the  dissolution  of  the  mo- 
nasteries. 


(a)  Hassell  d.  Hodson  v.Gowth-         (6)  32  Hen.  VIII.  c  34. 
\vaite,  Wjllcs,  500. 


ACTION    OF    EJECTMENT.  76 

The  words  of  the  statute  grant  the  privilege  of  re- 
entry to  the  assignees  "  for  non-payment  of  rent,  or 
for  doing  waste,  or  for  other  forfeiture  ;n  but  these 
latter  words  have  been  limited  in  their  interpretation 
to  (( other  forfeiture  of  the  same  nature"  and  extend 
to  the  breach  of  such  conditions  only,  as  are  incident 
to  the  reversion,  or  for  the  benefit  of  the  estate. 
Thus,  the  assignee  may  take  ad  vantage  of  conditions  for 
keeping  houses  in  repair,  for  making  of  fences,  scouring 
of  ditches,  preserving  of  woods,  &c.  but  not  of  colla- 
teral conditions,  as  for  the  payment  of  a  sum  in  gross, 
or  for  the  delivery  of  corn,  or  wood,  or  such  like,  (a) 

In  Spencer's  case,  (£)  many  differences  are  taken 
and  agreed  between  collateral  or  personal  covenants, 
and  covenants  which  run  with  the  land  or  are  inci- 
dent to  the  reversion;  and  much  learning  is  dis- 
played, which  it  would  be  foreign  to  the  purposes 
of  this  treatise  to  discuss ;  but  it  may  be  useful  to 
present  a  concise  view  of  the  decided  cases. 

A.  covenanted  for  himself  his  executors  and  ad- 
ministrators, that  he  would  build  a  wall  upon  part 
of  the  land  demised;  the  assignee  was  not  bound 
by  this  covenant,  because  the  wall  was  not  in  esse  at  the 
time  of  the  demise  made,  but  to  be  newly  built  after; 
but  it  was  resolved,  that  if  the  lessee  had  covenanted 
for  himself  and  his  assigns  expressly,  it  would  have 
bound  the  assignee,  although  the  wall  was  not  in  esse, 
inasmuch  as  what  was  covenanted  to  be  done,  was 
to  be  done  on  the  land  demised ;  (c)  but  if  the 

(a)  Co.  Litt.  215,  (b.)  (c)  Spencer's  case,  5.  Co.  16.  Bally 

(6)  5  Coke,  16.  v.  Welle,  3  Wils.  25. 


74  OF    THE    TITLE,    &C.    IN    THE 

matter  covenanted  to  be  done  does  in  no  man- 
ner touch  or  concern  the  thing  demised,  as  to  build 
a  wall  on  other  land,  or  pay  a  collateral  sum  to  the 
lessor,  the  assignee,  though  named,  will  not  be 
bound.  (a) 

A  covenant  in  a  lease  of  land,  that  the  lessee  or  his 
assigns  will  not  hire  persons  to  work  on  the  demised 
premises  who  are  settled  in  other  parishes,  is  a  collate- 
ral covenant,  and  does  not  bind  the  assignee,  although 
expressly  named  ;  for  it  does  in  no  way  affect  the 
thing  demised,  although  it  may  collaterally  affect 
the  lessor  by  increasing  the  poor  rates  upon  him. 


A  covenant  to  supply  the  demised  premises  with 
good  water  during  the  term  runs  with  the  land,  for 
it  is  a  covenant  which  respects  the  premises  demised, 
and  the  manner  of  enjoyment,  (c) 

A  covenant  to  insure  against  fire,  premises  si- 
tuated within  the  weekly  bills  of  mortality  mentioned 
in  14  Geo.  III.  c.  78,  is  a  covenant  that  runs  with  the 
land  ;  because,  by  the  operation  of  the  83rd  sec. 
(which  enables  the  landlord,  by  application  to  the 
directors  of  the  insurance  office,  to  have  the  sum 
insured  laid  out  in  rebuilding  the  premises)  this  is 
in  effect  a  covenant  to  lay  out  a  given  sum  of  money 
in  rebuilding  or  repairing  premises  in  case  of  damage 
by  fire,  which  clearly  is  a  covenant  running  with  the 


(a)  Vernon  v.  Smith,  5  B,  &  A.  1.          (c)  Jourdain  v.  Wilson,  4  B.  & 
(ft)  The  Mayor  of  Congleton  v.         A.  266. 
Pattison,  10  East.  130.          *;V 


ACTION    OP    EJECTMENT.  75 

land.  Best,  J.  was  of  opinion,  that  if  the  premises 
had  not  been  within  the  limits  of  the  act,  it  would  not 
have  varied  the  case,  because  the  original  covenantee 
could  not  avail  himself  of  the  covenant,  inasmuch 
as  after  the  assignment  he  sustains  no  loss  by  the 
destruction  of  the  buildings  ;  and  "  a  covenant  in  a 
lease,  which  the  covenantee  cannot,  after  his  assign- 
ment, take  advantage  of,  and  which  is  beneficial  to 
the  assignee  as  such,  will  go  with  the  estate  as- 
signed ;"  and  he  defines  collateral  covenants  to  be 
such  covenants  as  are  beneficial  to  the  lessor,  with- 
out regard  to  his  continuing  the  owner  of  the  estate ; 
but  the  judgments  of  the  other  judges  proceed  entire- 
ly on  the  ground  of  the  locality  of  the  premises,  (#) 

A.  being  seized  of  a  mill,  and  of  certain  lands, 
granted  a  lease  of  the  latter  for  years,  the  lessee 
yielding  and  paying  to  the  lessor  his  heirs  and  as- 
signs, certain  rents,  and  doing  suit  to  the  mill  of  the 
lessor  his  heirs  and  assigns,  by  grinding  all  such  corn 
there  as  should  grow  upon  the  demised  premises; 
this  reservation  of  the  suit  to  the  mill  is  in  the  nature 
of  a  rent,  and  the  implied  covenant  to  render  it  re- 
sulting from  the  reddendum,  is  a  covenant  that  runs 
with  the  land,  so  long  as  the  ownership  of  the  mill 
and  the  demised  premises  belong  to  the  same  per- 
son. (6) 

A  condition  that  a  lessee  shall  not  assign  over  his 
term,  without  licence  from  the  lessor,  is  a  collateral 

(«)  Vemon  v.  Smith,  5  B.&  A.  1.     (&)  Vivyan  v.  Arthur,  1  B.&  C.  410. 


7(>  OP    THE    TITLE,  &C.    IN    THE 

condition ;  and  cannot  be  taken  advantage  of  by  the 
assignee  of  the  lessor,  («) 

The  assignee  of  part  of  the  reversion  in  all  the 
lands  demised,  is  an  assignee  within  this  statute,  but 
the  assignee  of  the  reversion  in  part  of  the  lands  is 
not ;  for  the  condition  being  entire,  cannot  be  appor- 
tioned by  the  act  of  the  parties,  but  shall  be  destroy- 
ed. If,  therefore,  A.  be  lessee  for  years  of  three 
acres,  with  condition  of  re-entry,  and  the  reversion 
of  all  the  three  acres  be  granted  to  B.for  life,  or  for 
years,  B.  can  take  advantage  of  the  breach  of  the 
condition  ;  but  if  a  reversion  of  any  nature  whatso- 
ever, even  in-fee,  of  two  acres  only,  be  granted  to  B. 
he  cannot,  (b) 

A  cestui  que  use,  and  bargainee  of  the  reversion, 
are  within  this  statute,  because  they  are  assignees  by 
act  of  the  party ;  but  it  does  not  extend  to  persons 
coming  in  by  act  of  the  law,  as  the  lord  by  escheat ; 
(6)  nor  to  an  assignee  by  estoppel  only ;  (c]  nor  to 
one  who  is  in  of  another's  estate,  and  therefore  if  the 
reversion,  expectant  on  the  determination  of  the  term, 
be  merged  in  the  reversion  in-fee,  the  reversion  is  no 
longer  within  the  statute,  (d) 

This  estate  is  held  not  to  extend  to  gifts  in-tail,  (b) 


(a)  Lucas  v.  How,  Sir  T.  Rayra.  (c)  Awder  v.  Nokes,  Moore,  419. 
250.  Collins  v.  Silley,  Stiles  265.  (</)  Threr  v.  Barton,  Moore,  94. 
Pennant's  case,  3  Co.  64.  Chaworth  ».  Philips,  Moore,  876. 

(b)  Co.  Lilt.  215,  (a),  Webb  v.  Russell,  3  T.  C.  393.  401. 


ACTION    OF    EJECTMENT.  77 

but  copyhold   lands   are   within   its    intention    and 
equity  (a) 

16.  ONE  HAVING  HAD  AN  ADVERSE  POSSESSION  FOR 
TWENTY  YEARS. 

An  adverse  possession  for  twenty  years  is  not  only 
an  available  defence  to  the  party  whilst  he  continues 
in  possession,  but  it  gives  him  (unless  affected  by 
some  of  the  exceptive  provisions  in  the  statute  of 
limitations)  (b)  a  complete  possessory  right  to  the 
lands,  and  is  a  sufficient  title  to  enable  him  to  main- 
tain an  ejectment  against  any  person  who  ousts  him 
after  the  expiration  of  the  twenty  years,  (c) 

It  seems  that  this  doctrine  will  hold  between  the 
party  having  had  the  adverse  possession  for  twenty 
years,  and  the  legal  owner  of  the  lands,  although 
the  party  having  had  the  possession  afterwards 
desert  the  premises,  and  the  right  owner  peaceably 
enter  thereon,  (d) 

But  if  the  possession  of  the  party  be  affected  by 
any  of  the  provisions  of  the  second  section  of  the 
statute  of  limitations,  (b)  or  if  the  lands  be  the  pro- 
perty of  the  Crown  or  the  Church,  the  defendant  may 
avail  himself  thereof,  in  answer  to  the  claim  arising 
from  the  adverse  possession,  without  showing  any  title 


(a)  Glover  v.  Cope,  Carth.  205.        mond,  741. 

(i)  Ante,  46.  55.  (d)  Doe  d.    Burrough  v.  Reade, 

(c)  Stocker  v.  Barney,  Ld.  Kay-      8  East.  358. 


78  OP    THE    TITLE,    &C.    IN    THE 

in  himself.  If  indeed  the  lands  are  Crown  lands,  and 
the  claimant  has  been  ousted  by  a  wrong  doer,  after 
an  uninterrupted  possession  for  more  than  twenty 
years,  a  grant  of  them  from  the  Crown  will  be  pre- 
sumed in  his  favour,  unless  the  Crown  is  incapable  of 
making  such  grant;  but  if  such  incapacity  exist,  a 
grant  of  course  cannot  be  presumed  ;  and  no  pos- 
session for  less  than  sixty  years  will  then  be  suffi- 
cient to  enable  him  to  maintain  an  ejectment.  And  in- 
deed as  the  stat.  9  G.  I.  c.  16,  only  bars  the  suit 
of  the  Crown  after  a  continuing  adverse  possession 
of  sixty  years,  but  does  not  also  give  a  title  to  the 
adverse  possessor,  it  may  be  doubted  whether  any 
length  of  possession  of  Crown  lands  not  grantable 
by  the  Crown  will  be  a  sufficient  title  to  support  an 
ejectment,  (a) 

17.  CORPORATION  AGGREGATE,  OR  SOLE. 
*{y,j;v/T , 

It  was  formerly  doubted  whether  an  ejectment  could 
be  maintained  by  the  King,  because  an  ejectment  is 
for  an  injury  done  to  the  possession,  and  the  King 
cannot  be  put  out  of  possession.  But  this  reason- 
ing seems  only  to  apply  where  the  King  is  made 
plaintiff,  and  not  where  he  is  the  lessor  of  the  plain- 
tiff;  for  it  is  the  lessee,  and  not  the  lessor,  who  by 
the  legal  fiction  is  supposed  to  be  ousted ;  and  it  is 
held,  that  where  the  possession  is  not  actually  in  the 
King,  but  in  lease  to  another,  there,  if  a  stranger 
enter  on  the  lessee,  he  gains  possession  without 
taking  the  reversion  out  of  the  Crown,  and  may  have 

(a)  Goodtitle  d.  Parker  v.  Baldwin,  11  East.  488. 


ACTION    OF    EJECTMENT.  79 

his  ejectment  to  recover  the  possession,  if  he  be  af- 
terwards ousted  ;  because  there  is  a  possession  in 
pais,  and  not  in  the  King,  and  that  possession  is  not 
privileged  by  prerogative.  Hence  it  follows,  that 
the  King's  lessee  may  likewise  have  an  ejectment  to 
punish  the  trespasser,  and  to  recover  the  possession 
which  was  taken  from  him.  (a) 

In  cases,  however,  included  in  the  stat.  8  Hen.  VI. 
16,  and  18  Hen.  VI.  6,  which  prohibit  the  granting 
to  farm  of  lands,  seized  into  the  King's  hands  upon 
inquest  before  escheators,  until  such  inquest  shall  be 
returned  in  the  Chancery  or  Exchequer,  and  for  a 
month  afterwards,  if  the  King's  title  in  the  same  be 
not  found  of  record,  and  avoid  all  grants  made  con- 
trary thereto,  the  King  cannot  maintain  an  ejectment 
until  all  the  previous  requisites  are  complied  with  : 
for,  even  presuming  the  right  and  possession  to  be  in 
the  Crown  immediately  on  the  death  of  the  person 
last  seized,  the  King  has  no  power  to  grant  the  same 
until  after  office  found,  and,  consequently,  he  must 
be  considered  to  be  himself  in  possession,  and  there- 
fore unable  to  give  a  title  to  his  lessee. 


18.  CHURCHWARDENS  and  OVERSEERS  OF  THE  POOR 
for  lands  belonging  to  the  parish. 

To   remedy   the    practical    inconveniences   which 
frequently  arose  from  the   difficulty  of  substantiat- 


(a)  Payne's    case,  2   Leon.    205.       (1)  Doe  d.  Hayne  v.  Redfern,  13 
Lee  v.  Norris,  Cro.  Eliz.  331.  East.  96. 


80  OF    THE    TITLE,    &C.    IN    THE 

ing  a  legal  title  to  parish  lands,  (a)  it  was  enacted 
by  the  stat.  55  Geo.  III.  c.  12,  s.  17,  that  church- 
wardens and  overseers  of  the  poor,  and  their  succes- 
sors, should  take  and  hold  in  the  nature  of  a  body 
corporate,  for  and  on  behalf  of  the  parish,  all  build- 
ings, lands,  and  hereditaments  belonging  to  the  parish  ; 
and  that  in  all  actions,  suits,  and  other  proceedings 
for  or  in  relation  to  any  such  buildings,  lands,  or 
hereditaments,  it  shall  be  sufficient  to  name  the  over- 
seers and  churchwardens  of  the  poor  for  the  time 
being,  describing  them  as  churchwardens  and  over- 
seers of  the  poor  of  the  parish  for  which  they  shall 
act,  and  that  no  suit  or  other  proceeding  shall  abate 
by  reason  of  the  death  of  any  such  churchwarden  or 
overseer. 

In  order  to  constitute  the  body  corporate  intended 
by  this  act,  there  must  be  two  overseers,  and  a 
churchwarden  or  churchwardens ;  and  where  there 
were  two  overseers  appointed,  one  of  whom  was 
afterwards  appointed  (by  custom)  sole  churchwarden, 
the  act  did  not  vest  parish  property  in  them.  (6) 

1 9.  RECTOR,  OR  VICAR,  FOR  TITHES,  (c) 

The  statute  which  gives  this  remedy  for  tithes,  in- 
cludes only  lay  impropriators,  leaving  spiritual  per- 
sons to  pursue  the  old  remedy  in  the  Ecclesiastical 
Court ;  though  the  doctrine  has  since  been  extended 

(a)  Doe  d.  Grundy  v.  Clarke,  14  433. 

East.  488.  (c)  Camell  v.     Clavering,  Lord 

(ft)  Woodcock  v.Gibson,  4  B.  &  C.  Raym.  789. 
462.    Phillips  v.  Pearse,  5  B.  &  C. 


ACTION    OP    EJECTMENT.  81 

by  analogy  to  tithes  in  the  hands  of  the  clergy.(a) 
But  an  ejectment  for  tithes  can  only  be  maintained 
against  persons  claiming  or  pretending  to  have  title 
thereto,  and  not  against  such  persons  as  refuse  or 
deny  to  set  them  out,  which  is  called  subtraction  of 
tithes :  (£)  nor  will  it  lie  where  the  tithes  are  not 
taken  in  kind,  but  an  annual  sum  is  paid  in  lieu 
thereof,  (c) 

A  parson  cannot  maintain  ejectment  for  glebe  land 
after  sequestration,  (d) 

As  a  simoniacal  presentation  is  altogether  void, 
the  presentee  of  the  King  may,  after  institution  and 
induction,  maintain  ejectment  against  a  parson,  who 
has  been  simoniacally  presented,  although  he  has 
been  in  the  receipt  of  the  rents  and  profits  of  the 
rectory,  (e) 

20.  TRUSTEES. 

In  all  cases  in  which  the  trusts  are  not  executed  by 
the  statute  of  uses,  the  legal  estate  vests  in  the  trus- 
tees, and  of  course  in  such  cases  they  may  maintain 
ejectment. 

The  principles  upon  which  this  doctrine  is  founded 


(a)  Co.  Litt.  159.      Baldwin  ».         (d)  Doe  d.  Morgan  v.  Bluck,  3 
Wine,  Cro.  Car.  301.  Camp.  447. 

(6)  2  and  3  Edw.  VI.  c.  13.  s.  13.         (e)  Doe  d.  Watson  v.  Fletcher, 
(c)  Dyer,  116,  (b).  8  B.  &  C.  25. 

0 


8!2  OP    THE    TITLE,    &C.    IN    THE 

have  already  been  discussed ;  (a)  and  it  therefore  only 
remains  to  consider  a  few  cases,  in  which  the  trustees 
have  been  held  to  take,  or  not  to  take,  the  legal 
estate. 

A  distinction  has  been  made  between  a  devise  to 
a  person  in  trust  to  pay  over  the  rents  and  profits  to 
another,  (6)  and  a  devise  in  trust  to  permit  some  other 
person  to  receive  the  rents  and  profits;  the  legal  estate, 
in  the  first  case,  being  held  to  be  vested  in  the  trustee, 
and,  in  the  latter,  [in  the  cestui  que  trust ;  though, 
to  use  the  words  of  Sir  James  Mansfield,  C.  J.  "  It 
seems  miraculous  how  such  a  distinction  became 
established;  for  good  sense  requires  that  in  both 
cases  it  should  be  equally  a  trust,  and  that  the  es- 
tate should  be  executed  in  the  trustee; — for  how  can 
a  man  be  said  to  permit  and  suffer,  who  has  no  estate, 
and  no  power  to  hinder  the  cestui  que  trust  from  re- 
ceiving ?"  (c)  It  has,  indeed,  in  several  cases,  been 
argued,  that  a  devise  to  trustees  to  receive  the  rents 
and  profits,  and  pay  them  over,  will  not  vest  the 
legal  estate  in  the  trustees,  unless  something  is  re- 
quired of  the  trustees  which  renders  it  necessary  that 
they  should  have  an  interest  in  the  lands,  as  to  pay 
rates  and  taxes,  &c. ;  but  this  doctrine  has  not  yet 
been  sanctioned  by  any  decision  of  the  Courts ;  though 


(a)  Ante,  33.  Broughton  v.  Langley,  Salk.  679  ; 

(i)  Shep.  Touch.  482.  1  Eq.  Cas.  S.  C.  1  Lut.  814.     Burchettu.  Dur- 

Ab.  383,  384.    Shapland  v.  Smith,  dant,  2  Vent.  311.    Tenny  d.  Gibbs 

Brown,  Chan.  Cas.  75.  Silvester  d.  v.  Moody,  3  Bing.  3. 

Law  v.  Wilson,  2  T.  R.  444.    Jones  (c)  Doe  d.  Leicester  v.  Biggs,  2 

v.  Ld.  Say  and  Sele,  8  Vin.  Ab.  262.  Taunt.  109. 113. 


ACTION    OF    EJECTMENT.  83 

certainly  it  has  happened  in  all  the  later  cases,  that 
the  trustees  have  been  required  to  do  other  acts,  as 
well  as  to  pay  the  rents  and  profits,  (a) 

In  cases  where  it  is  necessary  for  the  purposes  of 
the  trust  that  the  trustees  should  take  the  legal  estate, 
it  will  be  held  to  vest  in  them,  though  the  devise  be, 
that  they  suffer  and  permit  the  cestuique  trust  to  re- 
ceive the  rents  and  profits ;  as  where  the  trust  was, 
that  the  trustees  should  permit  a  feme  covert  to  re- 
ceive and  take  the  rents  and  profits,  during  her  natural 
life,  for  her  sole  and  separate  use,  they  were  held  to 
have  the  legal  estate ;  such  construction  being  neces- 
sary to  give  legal  effect  to  the  testator's  intention  to 
secure  the  beneficial  interest  to  the  separate  use  of  the 
feme  covert,  (b)  And  where  lands  were  conveyed 
to  trustees,  and  their  heirs,  in  trust,  that  the  trustees 
should,  with  the  consent  of  A.,  sell  the  inheritance  in 
fee,  and  apply  the  purchase-money  to  certain  trusts 
mentioned  in  the  deed,  with  a  proviso,  that  the  rents, 
issues,  and  profits,  until  the  sale  of  the  inheritance, 
should  be  received  by  such  person,  and  for  such  uses, 
as  they  would  have  been  if  the  deed  had  not  been 
made,  it  was  held,  notwithstanding  the  proviso,  that 
the  estate  was  executed  in  the  trustees  immediately, 
even  before  A.  had  given  his  consent  to  the  sale ;  aud 
that  it  was  not  a  mere  power  of  sale  annexed  to  the 
legal  estate  of  the  owner,  (c) 


(a)  Jones  v.  Ld.  Say  and  Sele,         (6)  Harton  v.  Harton,  7  T.  R. 
3  Vili.  Ab.  262.     Kenrick  v.  Lord     652.j 

Beauclerk,  3  B.  &  P.  175.    Doe  d.         (c)  Keene  d.  Lord  Byron  v.  Dear- 
Hallen  v.  Ironmonger,  3  East.  533.    ^don,  8  East.  248. 

G    2 


84  OP    THE    TITLE,    &C.    IN    THE 

In  like  manner,  where  the  devise  was  to  A.  in  trust, 
to  permit  and  suffer  the  testator's  widow  to  have, 
hold;  use,  occupy,  possess  and  enjoy  the  full  free  and 
uninterrupted  possession  and  use  of  all  interest  of 
monies  in  the  funds,  and  rents  and  profits  arising  from 
the  testator's  houses  for  her  natural  life,  if  she  should 
remain  unmarried ;  and  that  her  receipts  for  all  rents, 
&cc.  with  the  approbation  of  any  one  of  the  trustees, 
should  be  good  and  valid,  she  providing  for  and  edu- 
cating properly  the  testator's  children,  and  also  pay- 
ing certain  annuities  ;  and  in  case  the  widow  should 
marry  again,  then  upon  certain  other  trusts;  it  was 
held  that  the  use  was  executed  in  the  devisees  in 
trust,  and  upon  this  ground,  that  the  testator,  having 
made  the  approbation  of  the  trustees  necessary  to 
the  widow's  receipts,  showed  that  he  did  not  intend 
to  give  her  a  legal  estate  ;  and  Gibbs,  J.  said,  "  The 
rule  has  been  misconceived.  Though  an  estate  be 
devised  to  A.  and  his  heirs,  to  the  use  of  B.  and  his 
heirs,  the  Courts  will  not  hold  it  to  be  an  use  executed, 
unless  it  appears  by  the  whole  will  to  be  the  testator's 
intent  that  it  should  be  executed.  The  Courts  will 
rather  say  the  use  is  not  executed,  because  the  appro- 
bation of  a  trustee  is  made  necessary,  than  that  the 
approbation  of  a  trustee  is  not  necessary  because  the 
use  is  executed.  The  very  circumstance  which  is  to 
discharge  the  tenants,  is  the  approbation  of  one  of 
the  trustees.  e  I  leave  my  wife  to  receive  the  rents, 
6  provided  there  is  always  the  controul  of  one  of  the 
e  trustees  upon  her  receipts/ — The  testator,  there- 
fore, certainly  meant  that  some  controul  should  be 
exercised, — and  what  could  that  controul  be,  ex- 


ACTION    OF    EJECTMENT.  85 

cept  they  were  to  exercise  it  in    the   character   of 
trustees  ?"  (a) 

Where  certain  freehold  and  leasehold  premises 
were  devised  to  trustees,  their  heirs,  &c.  "  to  permit 
and  suffer  the  testator's  wife  to  receive  and  take  the 
rents  and  profits  until  his  son  should  attain  the  age  of 
twenty-one,"  and  the  will  contained  also  subsequent 
devises  of  other  lands  to  the  same  trustees,  upon 
trusts  clearly  not  executed  by  the  statute,  as  for  the 
payment  of  debts,  raising  portion  for  younger  child- 
ren, &c.  and  immediately  after  the  last  of  the  dif- 
ferent devises  a  proviso  followed,  "  that  it  should  be 
lawful  for  the  trustees,  and  the  survivor,  at  any  time 
or  times,  till  all  the  said  lands,  &c.  devised  to  them, 
should  actually  become  vested  in  any  other  person  or 
persons,  by  virtue  of  the  will,  or  until  the  same,  or 
any  part  thereof,  should  be  absolutely  sold  as  afore- 
said, to  lease  the  same,  or  any  part  thereof,"  it  was 
holden,  that  the  legal  estate  in  the  freehold  lands  con- 
tained in  the  first  devise,  vested  in  the  widow,  not- 
withstanding  that  leasehold  premises  were  con- 
tained in  the  same  devise,  (the  legal  interest  in  which, 
of  course,  vested  in  the  trustees,)  and  the  subsequent 
leasing  power  given  by  the  will ;  because  the  leasing 
power  either  extended  to  none  of  the  lands  contained 
in  the  first  devise,  or  to  such  of  them  only  as  were 
originally  vested  in  the  trustees,  (namely,  the  lease- 
holds,) "  the  trustees  having  no  controul  over  the 
lands  in  the  first  devise  for  any  purposes  of  the  tes- 
tator's will."  (b) 

(a)    Gregory    v.    Henderson,    4         (A)  Knight  (/.Phillips  v.  Smith,  12. 
Taunt.  772.  East. 455. 


86  OF    THE    TITLE,  &C.  IN     THE 

Where  the  devise  was,  that  the  trustee  should  pay 
unto.,  or  else  permit  and  suffer  the  testator's  niece  to 
receive  the  rents,  the  legal  estate  was  held  to  be  in 
the  niece,  because  the  words  "  to  permit  and  suffer" 
came  last;  and  in  a  will,  the  last  words  prevail, 
though  in  a  deed  the  first.  («) 

In  a  case  where  the  devise  was,  "  I  give  and  be- 
queath my  real  estates,,  lands,  8$c.  and  also  my  per- 
sonal estate,  &c.  to  A.  B.,  upon  trust,  to  the  intent 
that  the  said  A.  B.,  his  heirs,  &c.  shall  first  dispose  of 
my  personal  estate,  or  so  much  thereof  as  shall  be 
sufficient  for  that  purpose,  in  payment  of  my  debts, 
&c.  and  as  to  all  my  real  estates,  wheresoever  and 
whatsoever,  subject  to  my  debts,  and  such  charge  or 
charges  as  I  may  now,  or  at  any  time  or  times  here- 
after, think  proper  to  make,  I  give,  devise,  and  be- 
queath the  same  to  C.  D.,  for  the  term  of  his  natu- 
ral life,  with  remainder  to  E.  F.,  &c."  it  was  holden 
that  the  legal  estate  was  vested  in  C.  D.,  because  an 
intention  that  the  trustees  should  pay  the  debts  was 
not  apparent  on  the  face  of  the  will,  and  therefore 
there  was  no  reason  for  giving  the  legal  estate  to  the 
trustees.  (#) 

Where  freehold  estates  are  devised  to  trustees 
and  their  heirs,  with  a  devise  over,  difficult  questions 
frequently  arise,  as  to  the  quantum  of  estate  taken  by 
the  trustees,  which  it  would  be  foreign  to  the  pur- 
poses of  this  treatise  to  discuss  ;  but  it  may  be  laid 

(a)  Doe  d.  Leicester  v.  Biggs,  2  assigned    for    their   decision     was 

Taunt.  109.  Mansfield,  C.  J.  in  de-  given  for  want  of  a  better, 

livering  the  judgment  of  the  Court  (b)  Kenrick  v.  Beauclerk,  3  B.  & 

in  this  case,  said,  the  reason  they  P.  175. 


ACTION    OF    EJECTMENT.  87 

down  as  a  general  principle,  that  where  an  estate  is 
given  to  trustees,  their  heirs,  executors,  administrators, 
and  assigns,  such  words  will,  according  to  their  natu- 
ral import,  give  the  fee  to  the  trustees,  unless  it 
clearly  appears  from  the  whole  will,  that  it  was  not  the 
intention  of  the  devisor,  that  the  trustees  should  take 
the  fee,  but  some  less  estate  ;  in  which  case,  the  will 
will  be  so  construed,  as  that  the  less  estate  should  be 
taken,  and  not  the  fee ;  (a)  and  of  course,  in  such 
cases,  the  trustees  cannot,  after  the  determination  of 
such  less  estate,  maintain  ejectment. 

As  the  statute  of  uses  mentions  only  such  persons 
as  are  seized  to  the  use  of  others,  it  has  been  held 
not  to  extend  to  terms  of  years,  or  other  chattel  in- 
terests, whereof  the  termor  is  not  seized,  but  only  pos- 
sessed', and  therefore,  when  only  a  term  of  years  is 
created,  whatever  the  nature  of  the  trusts  maybe,  the 
statute  does  not  execute  the  uses,  but  the  legal  estate 
always  vests  in  the  trustees,  (b) 

And  when  a  term  of  this  kind  is  created,  it  does 
not  cease  when  the  trusts  are  satisfied,  unless  there  is 
a  proviso  to  that  effect  in  the  deed  creating  the  term ; 
and  therefore,  when  the  deed  contains  no  such  pro- 
viso, the  legal  estate,  however  ancient  the  term  may 
be,  and  notwithstanding  it  may  have  been  assigned  to 
attend  the  inheritance,  will  remain  outstanding  in  the 
trustees,  or  their  representatives,  until  it  be  surren- 

(a)  Doe  d.  Tomkyns  v.  Willan,  &  C.357,  S.C.  3  B.  &  C.  191. 

2  B.  &  A.  84.    Houston  v.  Hughes,  (b)  Dillon  v.  Fraine,  Poph.  70 

6  B.  &  C.    403.     Murthwaite    v.  76  ;   Dyer,  369  ;  Jenk.  244. 
Barnard,  2  B.  &  B.624,  S.  C.  2B. 


88  OF    THE    TITLE,  &CC.  IN    THE 

dered  to  the  party  beneficially  interested,  or  merge  in 
a  larger  estate,  (a) 

Copyhold  estates  also  are  not  comprehended  within 
the  statute  of  uses ;  because  a  transmutation  of  pos- 
session, by  the  sole  operation  of  the  statute,  without 
the  concurrence  or  permission  of  the  lord,  would  be 
an  infringement  of  the  lord's  rights,  and  would  tend 
to  his  prejudice ;  and  therefore,  if  a  copyhold  be  sur- 
rendered to  A.  to  the  use  of  B.,  the  legal  estate  will 
not  be  transferred  to  B.,  though  he  would  be  entitled 
in  equity  to  the  rents  and  profits,  and  to  call  upon  A. 
for  a  surrender  of  the  estate.  (6) 

It  seems  to  have  been  held,  in  the  case  of  Roe  d. 
Ebrall  v.  Lowe,  (c)  that  a  bond  fide  lease,  made  by 
an  equitable  tenant  in-tail,  will  prevent  the  trustees, 
in  whom  the  legal  estate  is  vested,  from  recovering  in 
ejectment  against  the  lessee ;  although,  if  the  lease 
be  granted  under  suspicious  circumstances  of  fraud 
and  imposition,  the  trustees  will  not  be  barred.  But 
this  principle  cannot  now  be  supported,  and  a  lease 
from  the  cestui  que  trust  cannot  be  set  up  against  the 
trustee  in  any  case,  without  the  aid  of  a  court  of 
equity,  (d) 

To  obviate  the  inconveniences  which  may  at  times 
arise,  when,  an  ejectment  is  brought  by  a  cestui  que 
trust,  from  the  operation  of  the  salutary  maxim  that 
the  legal  title  must  prevail,  as  affecting  his  situation 

(a)  Vide  Sugden's  Vendors  and         (c)  1  H.  Blk.446. 
Purchasers,  3d  Edit.  263.  293.  (d)  Baker  v.  Mellish,  10  Vez.  Jr. 

(fr)  Co.  Cop.  s.  54.  Gilb.  Ten.  182.    544. 


ACTION    OF    EJECTMENT.  89 

with  his  trustees,  the  jury  will  in  particular  cases  be 
permitted  to  presume,  that  a  regular  surrender  has 
been  made  by  the  trustees  of  their  estate ;  thereby 
clothing  the  cestui  que  trust  with  the  legal  title,  and 
enabling  him  to  recover  in  the  action.  Thus  a  sur- 
render will  be  presumed  if  the  purposes  of  the  trust- 
estate  have  been  satisfied; (a)  or  if  the  beneficial 
occupation  of  the  estate  by  the  possessor  induces 
a  supposition,  that  a  conveyance  of  the  legal  estate 
has  been  made  to  the  party  beneficially  interested ; 
or  where  it  is  for  the  interest  of  the  owner  of  the 
inheritance,  that  the  term  should  be  considered  as 
surrendered,  (6)  or  when  the  trust  is  a  plain  one,  and 
a  court  of  equity  would  compel  the  trustees  to  make  a 
conveyance,  (c)  But  this  presumption  will  not  be 
made  if  the  surrender  be  a  breach  of  the  trust;  or 
against  the  owner  of  the  inheritance  who  is  interested 
in  upholding  it ;  (d)  or  where  the  title  of  the  party,  for 
whom  the  presumption  is  required,  is  a  doubtful 
equity  only,  until  a  court  of  equity  has  first  declared 
in  favour  of  the  equitable  title ;  (e)  nor  can  the  pre- 
sumption be  made  by  the  court,  where  the  merit  of 
the  case  would  have  warranted  such  presumption  at  the 
trial,  if  it  appear,  upon  a  special  verdict,  or  special  case 
reserved  for  their  opinion,  that  the  trust-estate  though 
satisfied,  is  still,  in  point  of  fact,  outstanding  in  the 
trustees,  (f) 


(a)  Doe  d.  Hodson  v.  Staple,  2  T.  (</)  Doe  d.  Graham  v.  Scott,  1 1 

R  684.  East.  478. 

(6)  Doe  d.  Burdett  v.  Wright,  2  (e)  Keene  d.  Lord  Byron  v.  Dear- 

B.  &  C.  7 10.  don,  8  East.  248. 

(c)  Doe</.  Syburn  v.  Slade,4  T.  (/)  Goodtitle  d.  Jones  v.  Jones, 

R.682.  7 T.  It. -13. 


90  OF    THE    TITLE,    &C.    IN    THE 

Where  a  term  of  years  was  created  in  1762,  and 
assigned  over  to  a  trustee  in  1779  to  attend  the  inhe- 
ritance; and  in  1814  the  owner  of  the  inheritance 
executed  a  marriage-settlement,  and  in   1816   con- 
veyed his  life  interest  in  the  estate  to  a  purchaser,  as 
a  security  for  a  debt,  but  no  assignment  of  the  term,  or 
delivery  of  the  deeds  relating  to  it,  took  place  on  either 
occasion ;  and  in  1819  (a  few  weeks  before  the  trial 
of  the  cause,)  an  actual  assignment  of  the  term  was 
made  by  the  administrator  of  the  trustee  in  1 779,  to  a 
new  trustee  for  the  purchaser  in  1816 ;   it  was  held, 
upon  ejectment  being  brought  by  a  prior  incumbrancer 
against  the  purchaser,  that  the  jury  were  warranted  in 
presuming  that  the  term  had  previously  to  1819  been 
surrendered,  (a)     Abbott,   C.   J.   in   delivering  the 
judgment  of  the  court  in  this  case,  observed  that  the 
principal  ground  of  objection  made  to  the  presump- 
tion was,  that  it  was  to  be  made  against  the  owner 
of  the  inheritance,  the  former  instances  being  all  in 
favour  of  such  owner ;  but  that  such   presumption 
might  be  made  against,  as  well  as  for  the  owner,  if 
the  justice  of  the  case  required  it ;  and  instanced  the 
case  of  a  mortgagor  setting  up  a  term  against  his  own 
mortgagee,  for  if  in  such  case,  the  term  existed  at 
the  time  of  the  mortgage,  the  mortgagor  ought  in 
honesty  to  have  secured  the  benefit  of  it  to  the  mort- 
gagee at  the  time,  and  not  to  have  reserved  it  in  his 
own  power,  as  an  instrument  to  defeat  his  mortgage. 
And  he  stated  as  one  of  the  general  grounds  of  a  pre- 
sumption, "  the  existence  of  a  state  of  things,  which 
may  most  reasonably  be  accounted  for,  by  supposing 

(«)  Doe  d.  Putland  v.  Hilder,  8  B.  &  C.  782. 


ACTION    OF    EJECTMENT.  91 

the  matter  presumed"  illustrating  the  principle  by 
the  facts  of  the  case  then  under  consideration. 

Where  the  demised  premises  were  settled  for  life 
on  A.9  with  power  to  charge  the  estate  with  an  annuity 
for  a  husband,  and  portions  for  younger  children,  and 
power  to  grant  leases  for  twenty-one  years;  and  A. 
granted  and  appointed  the  same  for  five  hundred  years, 
to  trustees  upon  trust,  if  she  should  by  deed  so  ap- 
point, by  mortgage  or  sale  of  the  term  to  raise  portions 
for  the  younger  children ;  and  after  such  grant  and 
appointment,  leased  the  premises  for  twenty-one 
years  to  B. ;  it  was  held,  that  taking  the  whole  deed 
together,  the  term,  until  it  was  called  into  action,  was 
subservient  to  the  leasing  power  ;  and  was  therefore 
no  answer  to  an  ejectment  brought  by  B.  (a) 

21.  JOINT   TENANT,   COPARCENER,  OR  TENANT  IN 
COMMON,  against  his  companion  on  an  actual  ouster.  (6) 

22.  LUNATIC. 

The  ejectment  must  be  brought  in  the  name  of  the 
lunatic ;  for  his  committee  is  but  a  bailiff,  and  has 
no  interest  in  the  land,  (c) 

23.  And  to  these  we  may  add,  that  an  award,  under 
a  submission  to  arbitration,  will  give  a  good  title  on 
which   to   maintain   this   action ;    for   although    the 
award  cannot  have   the  operation  of  conveying  the 

(a)  Doe  d.  Courtall  v.  Thomas,  Cocks  v.  Darson,  Hob.  215.   Knipe 

9  B.  &  C.  288.  v.   Palmer,   '2   Wils.  130.  ted  vide 

(6)  Ante,  54,  43  Geo.  III.  c.  75. 
(c)    Drury   v.  Fitch,  Hutt.    16. 


92  OP    THE    TITLE,  &C. 

land,  there  is  no  reason  why  the  defendant  may  not 
conclude  himself,  by  his  own  agreement,  from  dis- 
puting the  title  of  the  lessor  of  the  plaintiff  in  eject- 
ment. The  parties  consent  that  the  award  of  an  ar- 
bitrator chosen  by  themselves  shall  be  conclusive,  as 
to  the  right  of  the  land  in  controversy  between  them  ; 
and  this  is  sufficient  to  bind  them  in  the  action  of 
ejectment,  (a) 

(a)  Doe  d.  Morris  v.  Rosser,  3  East.  15. 


93 


CHAPTER  IV. 


Of  the  Cases  which  require  an  actual  Entry  upon  the 
land  before  Ejectment  brought. 

WHEN  an  entry  is  required  only  to  complete  the 
claimant's  title,  as  when  a  power  is  reserved  to  him 
to  re-enter  for  the  breach  of  any  condition  of  a  lease, 
or  grant,  the  common  consent  rule  will  be  sufficient 
to  enable  him  to  maintain  ejectment,  without  any 
actual  entry  upon  the  lands  in  dispute ;  but  when 
the  entry  is  requisite  to  rebut  the  defendant's  title, 
an  actual  entry  upon  them  must  be  made,  before  the 
action  can  be  supported,  (a)  Such,  at  least,  is  the 
principle  laid  down  by  Lord  Mansfield  ;  but  the  ap- 
plication of  the  latter  part  of  it  is  now  limited  to 
cases  where  fines  with  proclamations  have  been  levied, 
for  in  all  other  cases  the  common  consent  rule  to 
confess  entry  is  sufficient ;  and  it  may  be  doubted 
whether  the  necessity  of  an  actual  entry,  even 
when  a  fine  with  proclamations  has  been  levied, 
does  not  arise  from  the  construction  given  to  the 
words  of  the  statute  of  fines,  (b)  rather  than  from  the 

(a)  Per  Lord  Mansfield,  C,  J.  in      477—84. 
Goodright  d.  Hare  v.  Cater,  Doug.         (b)  4  Hen.  VII.  c.  24. 


94  OF    ACTUAL    ENTRY. 

general  principle  above  mentioned.  By  that  statute 
it  is  enacted,  that  when  a  fine  is  levied  with  procla- 
mations, persons  wishing  to  avoid  such  fine,  must 
pursue  their  title,  claim,  or  interest,  by  way  of  action, 
or  lawful  entry,  within  five  years  next  after  their  title, 
claim,  or  interest  shall  accrue ;  or  (provided  at  such 
time  they  be  under  any  legal  disability)  within  five 
years  next  after  such  disability  shall  cease  ;  and  as  the 
action  of  ejectment  was  not  used,  at  the  time  of  the 
enactment  of  this  statute,  for  the  trial  of  titles,  the 
word  action  in  it  has  been  interpreted  to  extend  to 
real  actions  only,  and  not  to  comprehend  the  remedy 
by  ejectment.  When,  therefore,  a  forfeiture  is  com- 
mitted by  the  levyingof  a  fine  with  proclamations,  and 
the  reversioner  does  not  resort  to  a  real  action,  it 
becomes  necessary  for  him,  if  he  mean  to  take  ad- 
vantage of  the  forfeiture,  to  have  recourse  to  the 
other  method  pointed  out  by  the  statute,  that  is  to  say, 
to  make  a  lawful  entry  upon  the  land ;  and  having 
made  the  lawful  entry,  and  thereby  avoided  the  fine, 
an  ejectment  will  afterwards  lie  for  the  recovery  of 
the  forfeited  lands,  in  the  same  manner  as  if  the  te- 
nant had  forfeited  his  estate  by  the  breach  of  any  con- 
dition annexed  to  his  grant. 

This  seems  to  be  the  true  principle  upon  which  an 
actual  entry  is  deemed  necessary  when  a  fine  with 
proclamations  has  been  levied;  and  it  is  sanctioned 
by  all  the  modern  decisions,  although  a  different  doc- 
trine was  formerly  maintained.  In  1703,  it  was  de- 
clared by  all  the  judges  (Price,  B.  excepted,)  that,  in 
case  of  a  fine,  there  must  be  an  actual  entry ;  and 
the  two  first  decisions  which  are  extant  after  this  de- 


OP   ACTUAL    ENTRY.  95 

claration,  interpret  the  maxim  to  extend  to  fines  ge- 
nerally, whether  with  or  without  proclamations ;  and 
consider  the  necessity  of  an  entry  to  arise  from  the 
puissance  of  a  fine  at  common  law,  and  not  from  the 
provisions  of  the  statute  of  fines,  (a). 

It  is  somewhat  singular  that  neither  of  these  cases 
is  noticed  in  any  of  the  subsequent  decisions  by  which 
they  have  been  over-ruled ;  (b)  although  from  the  su- 
periority of  the  modern  doctrine,  the  omission  can  by 
no  means  be  regretted.  It  is  (to  use  Lord  Mansfield's 
words)  "  absurd  to  entangle  men's  rights  in  nets  of 
form  without  meaning ;  and  an  ejectment  being  a 
mere  creature  of  the  court,  framed  for  the  purpose  of 
bringing  the  right  to  an  examination,  an  actual  entry 
can  be  of  no  service."  (c) 

It  was  in  one  case  held  by  the  Court  of  King's 
Bench,  at  a  trial  at  bar  in  ejectment,  that  where  one 
had  made  an  actual  entry  into  the  lands  before  any 
fine  was  levied,  and  brought  his  ejectment  after,  and 
laid  the  demise  in  the  declaration  before  the  time 
of  levying  the  fine,  such  entry  was  sufficient  to  en- 
title him  to  a  verdict.  It  is  difficult  to  discover 
the  principle  of  this  decision ;  for  it  is  evident,  by 
the  words  of  the  statute,  that  an  entry  before  the 
levying  of  a  fine,  cannot  avoid  a  fine  afterwards 
levied ;  and  if  it  be  said  that  the  entry  and  demise, 

(a)  Berrington  v.  Parkhurst,  And.  Burr.  1895.    Jenkins  d.  Harris  v. 

125.    S.  C.  Stran.  1086.     S.  C.  13  Pritchard,   2  Wils.  45.       Doe  d. 

East.  489.    Tapner  d.  Peckham  t.  Duckett  w.  Watts,  9  East  17. 

Merlott,  Willes,  177.  (c)  Goodright  d.  Hare  v.  Cator, 

(6)  Gates  d.  Wigfall  v.  Brydon,  Doug.  477.  85. 


96  OF    ACTUAL    ENTRY. 

being  before  the  levying  of  the  fine,  enabled  the 
lessor  to  show  a  good  title  at  the  time  of  the  demise, 
and  so  prevented  the  defendant  from  giving  the  sub- 
sequent fine  in  evidence,  there  seems  no  reason  why 
the  same  effect  should  not  be  produced  by  simply 
laying  the  demise  before  the  time  of  levying  the 
fine  without  making  an  actual  entry,  since  it  is 
clear  that  an  actual  entry  is  never  necessary  but  to 
avoid  a  fine,  (a) 

A  fine  cannot  be  avoided  by  entry,  except  when 
the  person,  who  seeks  to  avoid  it,  has  a  right  to  enter ; 
for  if  the  right  of  entry  be  taken  away  by  the  fine, 
and  a  right  of  action  only  remain,  as  if  the  fine  ope- 
rate as  a  discontinuance  of  the  estate,  a  real  action 
must  be  resorted  to.  Such  is  the  case  when  a  fine  is 
levied  by  a  tenant  in-tail.  (£)  But  if  a  tenant  in  tail 
first  alienate  his  estate  by  modes  of  conveyance 
which  transfer  only  the  possession,  and  not  the  right 
of  possession,  as  by  bargain  and  sale,  lease  and  re- 
lease, covenant  to  stand  seized,  &c.  and  the  grantee 
be  seized  by  virtue  of  such  conveyance,  a  fine  levied 
afterwards  by  the  tenant  in-tail,  will  not  operate  as  a 
discontinuance  of  the  estate-tail ;  but  the  remainder- 
man, or  reversioner,  after  the  death  of  the  tenant  in- 
tail  without  issue,  may  enter ;  provided  his  entry  be 
made  within  five  years  next  after  his  title  accrues,  (c] 

A  fine  levied  by  a  tenant  for  life  operates  as  a  for- 
feiture of  his  estate,  and  divests  also  the  estate  of  the 

(a)  Musgrave  d.  Hilton  v.  Shelly,      Burr.  704. 

1  Wils.  214.  (c)  Seymour's  case,  10  Co.  96. 

(fe)  Doe  d.  Odiarne  v.  Whitehead,      Ante,  35. 


OP   ACTUAL   ENTRY.  97 

remainder-man  or  reversioner,  leaving  in  him  only  a 

right  of  entry.      An  actual  entry  must,  therefore,  be 

made  upon  the  lands,  in  order  to  avoid  such  fine,  be- 

fore ejectment  can  be  maintained  ;  (a)  and  this  entry 

may  be  made,  and  the  ejectment  brought,  by  the  party 

next  in  remainder,  either  within  five  years  next  after 

the  time  when  the  proclamations  upon  the  fine  are 

completed  by  reason  of  the  forfeiture,  or  within  five 

years  after  the  natural  determination  of  the  preced- 

ing estate.      When  also  there  are  several  remainder- 

men in  succession,  the  laches  of  one  remainder-man 

will  not  prejudice  the  others,  but  each  remainder- 

man will  be  entitled  to  his  right  of  entry  within  five 

years  after  his  title  accrues,  notwithstanding  the  laches 

of  those  who  have  preceded  him.  But  this  right  can  only 

be  exercised  by  the  original  remainder-men  and  rever- 

sioners,  and  will  not  pass  by  assignment  or  devise,  (b) 

When  a  lessee  for  years  makes  a  feoffment,  and 
then  levies  a  fine  to  his  feoffee,  an  actual  entry  is 
necessary  to  avoid  the  fine,  (c)  and  the  reversioner 
may  then  likewise  enter  within  five  years  next  after 
levying  the  fine,  or  within  five  years  next  after  the 
expiration  of  the  term,  (d) 


But  where  a  fine  is  levied  by  a  tenant  for  life  with- 
out any  previous  feoffment,  although  it  amounts  to  a 
forfeiture  of  his  estate,  it  is,  from  the  want  of  a  free- 

(a)  Doe  d.  Compere  v.  Hicks  7  T.  v  Windsor,  2  Ves.  472.  481. 

R.433.  (d)  Whaley  v.  Tankard,  2  Lev. 

(6)  Goodright  d.  Fowler  v.  For-  52.    S.  C.  1  Vent.  241.     S.  C.  Sir 

rester,  8  East  552.  T.  Raym.  219.  Vide  cont.  per.  Cat- 

(c)  Hunt  v.  Bourne,   Salk.  339,  line,  J.Stowell  v.  Zouch,Plow.374. 

and  the  cases  there  cited.    Pomfret  (a).    Podger's  case,  9  Co.  105,  (6). 

H 


98  OF    ACTUAL    ENTRY. 

hold  interest  in  the  parties,  wholly  inoperative,  (a) 
and  consequently  does  not  require  an  actual  entry  to 
avoid  it ;  but  the  reversioner  may  recover  the  pre- 
mises by  ejectment,  as  upon  a  right  of  re-entry  for 
the  breach  of  any  condition  or  covenant  contained  in 
a  lease,  (b) 

So  likewise  a  fine  levied  by  a  mortgagor  is  inopera- 
tive, (c) 

It  is  also  necessary  that  there  should  be  an 
interest  in  possession  in  the  conusor  at  the  time  of 
the  fine  being  levied ;  and  therefore  an  actual  entry 
is  not  necessary  where  a  fine  is  levied  by  a  person  in 
remainder,  (d)  or  by  one  who  has  parted  with  the  im- 
mediate estate  of  freehold,  (e)  or  who  is  not  actually 
seized  at  the  time  of  levying  the  fine,  (f) 

As  the  possesion  of  one  joint  tenant,  parcener,  or 
tenant  in  common,  is  in  contemplation  of  law  the 
possession  of  his  companion  also,  (g)  a  fine  levied  by 
a  joint  tenant,  parcener,  or  tenant  in  common,  pre- 
viously to  an  actual  ouster  of  his  companion,  will  not 
operate  to  divest  his  companion's  estate ;  and  if  the 

(a)  Shep.  Touch.  14,  and  the  cases     B.  &  A.  85.    Doe  d.  James  v.  Har- 
cited  in  Hunt  v.  Bourne,  1  Salk,      ris,  5  M.  &  S.  326. 

339.  341,  (6).  (e)  Rowe  v.  Power  d.  Boyce,  2 

(b)  Fenn  d.  Mathews  v.  Smart,  12      N.  R.  1. 

East.  444.       Peaceable    d.   Horn-  (/)  Doe  d.  Ligberd  v.  Lawson,  8 

blower  v.  Read,   1    East.  568.  74.  B.   &  C.  606.     Doe  d.  Osborne  v. 

Doerf.  Burrell  v.  Perkins,  3  M.  &  S.  Spencer,  11  East.  495.     Doe  d.  Da- 

271.  et  vide  1  Saund.  319,  c  .  vis  v.  Davis,  1  C.  &  P.  130. 

(c)  Doe   d.  Surtees  v.  Hall,    5  (g)  Ford  v.  Gray,  Salk.  285.  S.  C. 
B.  &  A.  687.  6  Mod.  44.     Sraales  v.  Dale,  Hob. 

(d)  Roe  d.  Truscott  v.  Elliot,  1  120. 


OF    ACTUAL    ENTRY.  99 

party  so  levying  the  fine  afterwards  actually  oust  his 
companion,  an  ejectment  may  be  maintained  against 
him  without  an  actual  entry  on  the  lands,  (a) 

If  all  the  proclamations  have  not  been  completed, 
the  fine  will  only  enure  as  a  fine  at  common  law,  and 
no  entry  will  be  necessary  to  avoid  it.  (6)  When 
also  a  tenant  for  life  does  not  levy,  but  merely  ac- 
cepts a  fine,  although  such  acceptance  will  create  a 
forfeiture  of  his  estate*  (c)  yet,  as  the  person  who 
levied  the  fine  had  not  any  estate  or  interest  in  the 
lands  at  the  time  of  levying  the  fine,  it  neither  alters 
the  estate  of  the  tenant  for  life,  nor  divests  the  re- 
mainder or  reversion,  and  consequently  no  entry  is 
necessary  to  avoid  it.  (d  ) 

A  husband  claiming  lands  in  right  of  his  wife  must 
enter  within  five  years  after  his  title  accrues,  or  the 
fine  will  operate  as  a  bar  during  the  coverture,  but 
an  infant  may  avoid  a  fine  by  entry  at  any  time 
during  his  infancy,  (e) 

The  entry  must  be  made  by  the  party  who  claims 
the  land,  or  by  some  one  appointed  for  him ;  (jO 
although  if  the  entry  be  made  by  a  stranger,  in  the 
name  of  the  person  who  has  the  right,  without  any 
previous  command  from  him,  and  he  afterwards  assent 

(a)  Peaceable  d.   Hornblower  v.  (d )  Podger's  case,  9  Co.  106,  (b.) 

Read,  1  East.  568.  Green  v.  Proude,  1  Mod.  117.  S.  C. 

(6)  Doe  d.  Duckett  v.  Watts,  9  1  Vent.  257,  8. 

East.  17,  set  vide  Tapner  d.  Peckbam  (e)  Doe  d.  Wright  v.  Plumptree, 

v.  Merlott,  Willes,  177.  3  B.  &  A.  474. 

(c)  Co.  Litt.  252,  (a).  (/  )  Co.  Litt.  258,  (a). 


100  OP   ACTUAL    ENTRY. 

to  the  entry,  within  five  years  after  the  fine  is  levied, 
such  entry  will  be  sufficient,  (a)  If,  however,  the 
assent  be  not  given  within  the  five  years,  any  sub- 
sequent assent  will  not  avail ;  for  the  statute  of  fines, 
being  made  for  the  purposes  of  repose  and  tran- 
quillity, is  always  taken  strictly,  (b) 

But  a  guardian  by  nurture,  or  in  socage,  may  enter 
in  the  name  of  his  ward,  without  any  command  or  as- 
sent, and  such  entry  shall  save  his  right.  So  also  the 
remainder-man,  or  reversioner,  or  lord  of  a  copyhold, 
may  enter  in  the  name  of  the  tenant  for  life,  years,  or 
copyholder ;  or  these  particular  tenants  in  the  name 
of  the  reversioner,  or  remainder-man,  or  the  lord, 
without  any  command  or  assent,  on  account  of  the 
privity  between  these  persons,  (c)  So  likewise  an 
entry  by  a  cestui  que  trust  will  be  sufficient,  (d  ) 

When  one  joint  tenant,  tenant  in  common,  or  par- 
cener, enters  generally  into  lands,  it  will  be  sufficient 
to  avoid  the  effect  of  a  fine  as  to  his  companion,  from 
the  principle  before  mentioned,  that  the  possession  of 
one  joint  tenant,  tenant  in  common,  or  parcener,  is 
the  possession  of  his  companion  also,  (e) 

With  respect  to  the  mode  of  making  the  entry,  it 
must  be  upon  the  lands  comprised  in  the  fine ;  for  an 

(a)  Co.  Litt.  245,  (a).    Fitchet  v.  (c)    Podger's    case,  9    Co.    106, 

Adams,  Stran.  1128.  (a). 

(6)  Pollard  v.  Luttrell,  Pop.  108.  (d)  Gree  v.  Rolle,  1  Lord  Ray- 

S.  C.  Moore,  450.    Audley's  case,  mond,  7 16. 

Moore,  45T.     Podger's  case,  9  Co.  (e)  Brook.  Ab.    Entre   Con.  37. 

106,  (a).     Audley  v.  Pollard,  Cro.  1  Roll.  Abr.  740.     Doe  d.  Gill  v. 

Eliz-  561.  Pearson,  6  East.  173. 


OP    ACTUAL   ENTRY.  101 

entry  into  other  lands,,  claiming  those  comprised  in 
the  fine,  will  not  be  sufficient,  (a)  Thus,  where  a 
fine  having  been  levied,  the  lessor  of  the  plaintiff 
proved  that  at  the  gate  of  the  house  in  question,  he 
said  to  the  tenant,  that  he  was  heir  to  the  house  and 
land,  and  forbad  him  to  pay  more  rent  to  the  defend- 
ant, but  did  not  enter  into  the  house  when  he  made 
the  demand,  it  was  agreed  that  the  claim  at  the  gate 
was  not  sufficient;  but  as  it  appeared  that  there  was 
a  court  before  the  house  which  belonged  to  it,  and 
that  though  the  claim  was  at  the  gate,  yet  that  it  was 
on  the  landy  and  not  in  the  street,  the  claim  was 
holden  good.  (6)  But  if  a  person  be  prevented  by 
force  or  violence,  from  entering  on  the  lauds  whereof 
a  fine  has  been  levied,  he  must  then  make  his  claim 
as  near  the  land  as  he  can ;  which  in  that  case  will 
be  as  effectual  as  if  he  had  made  an  actual  entry,  (c) 

When  all  the  lands  lie  in  one  county,  the  party 
may  enter  into  any  part  of  them,  making  a  declara- 
tion in  the  name  of  the  whole ;  but  if  the  lands  lie  in 
different  counties,  there  must  be  separate  entries  for 
the  several  counties,  (d)  The  entry  must  also  be 
made  ammo  clamandi,  with  an  intention  of  claiming 
the  freehold  against  the  fine  ;  (e)  and  therefore  when^ 
upon  a  special  verdict  in  ejectment,  it  was  found 
that  a  fine  had  been  levied  of  the  premises,  and  that 
the  lessor  of  the  plaintiff  entered  upon  the  premises 
with  intent  to  make  the  demise  in  the  declaration 


(a)  Focus    v.    Salisbury,    Hard.         (c)  Litt.  s.  419.  Co.  Litt.  253,  (6). 
400.  (d)  Litt.  s.  417. 

(6)  Anon.  Skin.  412.  (e)  Clarke  v.  Phillips,  1  Vent.  42. 


102  OF   ACTUAL    ENTRY. 

mentioned,  but  not  for  the  purpose  of  avoiding  the 
fine,  it  was  held  that  such  entry  was  not  sufficient,  (a) 

By  the  statute  4  Anne,  c.  16.  s.  15,  it  is  enacted, 
that  no  claim,  or  entry,  to  be  made  upon  any  lands, 
&c.  shall  be  of  any  force  to  avoid  a  fine  levied  with 
proclamations  according  to  the  statute,  or  a  sufficient 
entry  within  the  statute  of  limitations,  unless  upon 
such  entry  or  claim,  an  action  be  commenced  within 
one  year  after  the  making  of  such  entry  or  claim, 
and  prosecuted  with  effect;  and  therefore,  if  the 
claimant  fail  in  the  ejectment  brought  in  consequence 
of  the  entry,  and  have  not  time  to  commence  a  second 
ejectment  within  twelve  months  after  the  making  of 
the  entry,  a  second  entry  must  be  made.  But  if  the 
actual  entry  be  once  made,  and  the  claimant  proceed 
to  execution  in  an  ejectment  brought  thereon,  it 
seems  clear  that  the  fine  is  totally  avoided,  and  that 
no  second  entry  will  be  necessary,  if  he  be  afterwards 
turned  out  of  possession,  by  the  wrong-doer,  who 
levied  the  fine;  for  the  fine  being  once  avoided 
shall  be  void  for  ever.  (6) 

It  has  been  questioned  whether  an  actual  entry  is 
not  necessary  to  prevent  the  operation  of  the  statute 
of  limitations ;  (c)  but  it  seems  quite  clear  from  the 
whole  current  of  authorities,  that  no  entry  is  neces- 
sary if  the  action  be  commenced  within  the  twenty 
years.  If,  however,  the  twenty  years  be  near  ex- 

(a)  Berrington  d. Dormer  u.Park-  366. 

hurst,  And.  125.  S.  C.  Stran.  1086.         (c)  Goodright  d.  Hare  v.  Cater, 

S.  C.  Willes,  327.  S.  C.  13  East.  489.  Doug.  477. 485,  (n.  !)• 

(6)  Stovrell  v.  Zouch,  Plowd.  353. 


OP   ACTUAL    ENTRY.  103 

pi  ring  before  an  ejectment  is  brought,  it  will  be  pru- 
dent to  make  an  actual  entry ;  for  it  seems,  that  if  an 
actual  entry  be  made  before  the  expiration  of  the 
twenty  years,  an  ejectment  may  be  brought  at  any 
time  within  twelve  months  after  the  entry,  although  the 
twenty  years  should  in  the  mean  while  have  expired ; 
and  also  that  if  the  lessor  of  the  plaintiff  fail  in  his 
first  ejectment,  whether  brought  within  the  twenty 
years  or  after,  he  may,  from  the  provisions  of  the 
statute  of  Anne  before-mentioned,  bring  a  second, 
provided  this  second  ejectment  be  likewise  brought 
within  a  year  after  the  entry  is  made ;  whereas,  if  an 
ejectment  be  brought  without  an  actual  entry,  and  the 
claimant  fail  in  it,  and  before  another  ejectment  can 
be  brought,  the  twenty  years  expire,  he  will  be  en- 
tirely barred  of  this  remedy  ;  because  the  entry  which 
is  confessed  by  the  defendant  in  the  first  ejectment  be- 
ing only  a  fictitious  entry,  and  the  second  ejectment 
being  a  new  action,  and  not  a  continuance  of  the  first, 
it  amounts  to  the  same  thing  as  if  no  entry  had  been 
confessed,  or  no  ejectment  had  been  brought  until 
after  the  expiration  of  the  twenty  years. 


104 


CHAPTER  V. 


Of  the  Action  of  Ejectment  as  between  Landlord 
and  Tenant. 


THE  modern  action  of  ejectment  is  not  confined  in 
its  beneficial  effects,  solely  to  the  trial  of  disputed 
titles.  It  is  also  the  common  remedy  for  landlords,  on 
the  determination  of  tenancies,  to  recover  the  posses- 
sion of  their  lands  from  refractory  tenants ;  and  it 
therefore  properly  belongs  to  this  treatise,  to  inquire 
into  the  several  relations  of  landlord  and  tenant  with 
regard  to  this  remedy,  and  to  point  out  the  different 
ways  by  which  the  tenant's  title  to  the  possession  may 
be  determined,  and  the  right  of  entry  in  the  landlord 
accrue. 

A  tenancy  may  be  determined  in  three  several 
ways  ;  first,  by  the  effluxion  of  time,  or  the  happen- 
ing of  a  particular  event;  secondly,  by  a  notice  from 
the  landlord  to  the  tenant  to  deliver  up  the  posses- 
sion, or  vice  versa ;  and  thirdly,  by  a  breach  on  the 
part  of  the  tenant  of  any  condition  of  his  tenancy,  as 
by  the  non-payment  of  rent,  or  the  non-performance 
of  a  covenant. 


OF  THE  ACTION  OF  EJECTMENT,  &C.     105 

No  comments  are  necessary  upon  the  first  of  these 
divisions  ;  it  sufficient  to  say  generally,  that,  when 
the  time  expires,  or  the  particular  event  happens,  the 
tenancy  is  at  once  determined ;  and  that  the  landlord 
may  immediately  maintain  an  ejectment  to  recover 
his  possession,  without  giving  any  previous  notice  to 
the  tenant,  (a) 

The  cases  comprised  in  the  second  division  must 
be  treated  of  more  fully;  and,  to  understand  per- 
fectly the  principles  upon  which  they  have  been 
decided,  it  will  be  necessary  to  give  a  short  history 
of  that  species  of  tenancy,  now  called  a  tenancy 
from  year  to  year. 

It  has  already  been  observed,  that  until  the  reign 
of  King  Henry  VII.,  even  a  tenant,  having  a  lease  of 
lands  for  a  definite  period,  had  not  a  full  and  com- 
plete remedy  when  ousted  of  his  possession.  The 
tenants,  who  during  those  times  occupied  lands  with- 
out any  specific  grant,  held  them  by  a  far  more  pre- 
carious tenure.  A  general  occupation  of  lands,  that  is 
to  say,  a  holding  of  the  lands  of  another  without  any 
certain  or  determinable estate  beinglimited  therein,  was 
then  considered  as  a  holding  at  the  will  and  pleasure 
of  the  owner  of  the  land  ;  and  the  tenant  was  liable 
to  be  ejected,  at  any  moment,  by  the  simple  determi- 
nation of  his  landlord's  will.  But  the  same  enlight- 
ened policy,  which  secured  to  lessees  for  years  the 
complete  possession  of  their  terms,  soon  extended 
itself  also  to  those  general  holdings,  then  called 

(«)  Roe  d.  Jordan  v.  Ward,  1 II.  Clk.  97. 


106       OP  THE  ACTION  OP  EJECTMENT 

tenancies  at  will ;  and  in  the  reign  of  King  Henry 
VIII.,  (a)  we  find  it  holden  by  the  Courts,  that  a  gene- 
ral occupation  should  be  considered  to  be  an  occupa- 
tion from  year  to  year;  and  that  a  person  so  holding 
should  not  be  ejected  from  his  lands,  without  a  rea- 
sonable notice  from  his  landlord  to  relinquish  the 
possession.  It  was  also  at  the  same  time  settled,  that 
this  reasonable  notice  should  be  a  notice  for  half  a 
year,  expiring  at  the  end  of  the  tenancy ;  because 
otherwise,  a  notice,  reasonable  as  to  duration,  might 
be  given,  which  would  notwithstanding  operate 
greatly  to  the  prejudice  of  the  tenant,  by  ejecting 
him  from  his  lands,  immediately  before  the  harvest, 
or  other  valuable  period  of  the  year :  and  this  rule 
has  remained  unaltered  to  the  present  day,  except 
where  a  differenttime  is  established,  either  by  express 
agreement,  or  immemorial  custom,  (b) 

A  general  occupation  of  land  now  therefore  enures 
as  a  tenancy  from  year  to  year,  determinable,  and 
necessarily  determinable,  (c)  by  a  notice  to  quit; 
and  a  holding  merely  at  the  will  of  the  landlord,  ac- 
cording to  the  ancient  meaning  of  the  term,  is  an 
estate  unknown  in  modern  times,  (d)  unless  when 
created  by  express  agreement  between  the  parties,  (e) 
There  is  indeed  an  implied  modern  tenure  denomi- 
nated a  tenancy  at  will,  but  it  differs  materially  from 
the  old  tenancy  so  called,  and  in  truth  is  scarcely  dis- 

(a)  13  Hen.  VIII.  15,  (6).  (d)    Timmins  v.    Rawlinson,    3 

(6)  Parker  d.  Walker  v.  Constable,  Burr.  1603—9. 

3  Wils.  25.  (e)    Richardson  v.  Lengridge,  4 

(c)  Doe  d.  Warner  v.  Brown,  8  Taunt.  128. 
East.  165. 


AS  BETWEEN  LANDLORD  AND  TENANT.     107 

tinguishable  from  a  mere  permissive  occupation  of  the 
land,  independent  of  the  relationship  of  landlord  and 
tenant.  This  kind  of  tenancy  arises,  when  the  party 
is  in  possession  of  the  premises  with  the  privity  (a) 
and  consent  of  the  owner,  no  express  tenancy  having 
been  created,  and  no  act  having  been  done  by  the 
owner  impliedly  acknowledging  such  party  as  his 
tenant.  As  where  he  has  been  let  into  possession 
pending  a  treaty  for  a  purchase  or  a  lease,  (£)  or 
under  a  lease  or  agreement  for  a  lease  which  is  void,  (c) 
or  where  having  been  tenant  for  a  term  which  has 
expired,  he  continues  in  possession  negociating  for  a 
new  one.  (d)  In  all  these,  and  the  like  cases,  it  is 
holden  that  the  party  being  lawfully  in  possession, 
cannot  be  ejected  until  such  lawful  possession  is 
determined,  either  by  demand  of  possession,  breaking 
off  the  treaty,  or  otherwise,  and  the  party  is  called  a 
tenant  at  will ;  but  in  any  of  these  cases  if  the  land- 
lord receive  rent  whilst  the  party  is  so  in  possession, 
or  do  any  other  act  amounting  to  an  acknowledgment 
of  a  subsisting  tenancy,  a  tenancy  from  year  to  year 
will  be  created  thereby,  (e) 

It  is  singular  that  we  do  not  find  in  the  old  authori- 


(«)  Doe  d.  Knight  v.  Quigley,  2  nett,  2  Esp.  717. 

Camp.  505.    Right   d.   Lewis    v.  (d)  Denn  d.  Brune  v.  Rawlins,  U) 

Beard,    13   East.   210.    Hegan   v.  East.  261.  Doe  d.  Foley  v.  Wilson, 

Johnson,  2  Taunt.  148.      Doe  d.  11  East.  56. 

Leeson  v.  Sayer,  3  Camp.  8.  (e)  Doe  d.  Rigge  v.  Bell,  5  T.  R. 

(6)  Goodtitle  d.  Galloway  v.  Her-  47 1.    Clayton  v.  lilakey,  8  T.  R.  3. 

bert,  4  T.  R.  680.    Doe  d.  Warner  Thunder  d.  \\  eaver  v.  Belcher,  3 

v.  Browne,  8  East.   165.    Doe  d.  East.  449,451.    Doe  d.  Warner  v. 

Newby  v.  Jackson,  1  B.  &  C.448.  Browne,  8  East.  165. 

(c)  Doe  d.  Hollingsworth  v.  Sten- 


108  OP   THE    ACTION    OF    EJECTMENT 

ties,  any  decisions  relative  to  notices  to  quit,  although 
the  practice  of  giving  them  has  been  so  long  esta- 
lished ;  but  during  the  last  sixty  years  they  have 
become  objects  of  considerable  attention  to  our  courts, 
and  there  is  now  no  difficulty  in  reducing  their  requi- 
sites to  a  clear  and  satisfactory  system. 

In  considering  the  uses  and  requisites  of  the  notice 
to  quit,  our  first  inquiry  will  be  directed  to  those  par- 
ticular cases  in  which  implied  tenancies  from  year  to 
year  are  created,  although  the  direct  relationship  of 
landlord  and  tenant  does  not  exist;  we  shall  then 
consider  by  whom,  and  to  whom,  the  notice  should  be 
given;  then  proceed  to  the  form  of  the  notice,  and 
the  particular  times  required  in  certain  cases,  for 
its  expiration;  and  lastly  point  out  the  means  by 
which  the  notice  may  be  waived. 

A  mortgagee  may  maintain  ejectment  against  a 
mortgagor,  after  the  forfeiture  of  the  mortgage, 
without  any  previous  notice  to  quit,  or  demand 
of  possession ;  (a)  and  the  under  lessees  of  the 
mortgagor  may  also  in  like  manner  be  ejected, 
provided  they  have  been  let  into  possession  by  the 
mortgagor,  subsequent  to  the  mortgage,  and  with- 
out the  privity  of  the  mortgagee ;  and  it  is  imma- 
terial whether  they  hold  as  tenants  from  year  to  year, 
or  by  leases  executed  after  the  date  of  the  mortgage. 
But  if  a  lease  be  granted  by  a  mortgagor  with  the 
concurrence  of  the  mortgagee,  or  if  a  mortgagee, 
with  knowledge  that  the  mortgagor  has  granted  a 

(tf)  Doe  d.  Fisher  ».  Giles,  5  Bing.421.  S.  C.  2.  M.  &  P.  749. 


AS    BETWEEN    LANDLORD    AND    TENANT.  109 

lease,  encourage  the  tenant  to  lay  out  money  upon 
the  premises,  it  may  admit  of  doubt  whether  by  such 
conduct  the  mortgagee  has  not  confirmed  the  lease, 
or  so  far  at  least  acknowledged  the  lessee  as  his 
tenant,  as  to  render  a  notice  to  quit  necessary  before 
he  can  maintain  ejectment  against  him.  (a)  With 
respect  to  tenancies  created  prior  to  the  mortgage, 
the  situation  of  the  mortgagee  is  of  course  the  same 
as  that  of  the  mortgagor  before  the  mortgage  was 
made.  (5) 

The  assignees  of  the  mortgagee  haye  also  the  like 
privileges  with  regard  to  the  mortgagor  and  his 
under-tenants ;  and  the  right  of  an  assignee  to  main- 
tain ejectment  without  a  notice  to  quit,  or  demand  of 
possession,  will  not  be  taken  away  by  a  tenancy 
created  prior  to  the  assignment,  provided  such  te- 
nancy commenced  subsequently  to  the  date  of  the 
mortgage,  and  continued  unacknowledged  by  the 
mortgagee,  (c) 

The  like  principle  prevails  with  respect  to  claim- 
ants under  writs  of  elegit ;  if  the  judgment  debtor  be 
himself  in  possession,  or  if  the  party  in  possession 
has  been  admitted  tenant  subsequently  to  the  date  of 
the  judgment,  (whether  as  a  yearly  tenant  or  under  a 
lease)  the  tenant  by  elegit  may  maintain  ejectment 
without  a  notice  to  quit,  or  demanding  possession; 

(a)  Doe  d.  Sheppard  v.  Allen,  3  T.   R.    378.    Doe  d.  Sheppard  v. 

Taunt  78.  Allen,  3  Taunt.  78. 

(6)  Warne  d.  Keech  v.  Hall,  Doug.  (c)  Thunder  d.  Weaver  v.  Belcher, 

21.  Thunder  d.  Weaver  v.  Belcher,  3  East.  449. 
3  East.  449.     Birch  v.  Wright,    1 


110        OF  THE  ACTION  OF  EJECTMENT 

but  if  the  tenant  claim  under  a  lease,  or  tenancy  from 
year  to  year,  prior  in  point  of  time  to  the  judgment, 
the  claimant  will  be  barred  in  the  last  case  until  he 
has  determined  the  tenancy  by  a  regular  notice  to 
quit;  in  the  first,  until  the  determination  of  the  lease,  (a) 

When  a  party  has  obtained  possession  of  premises 
belonging  to  another,  and  the  owner  does  any  act 
from  which  a  jury  may  infer  that  he  intends  to  ac- 
knowledge him  as  his  tenant,  a  tenancy  from  year  to 
year  is  created  by  such  act,  and  the  party  will  be 
entitled  to  a  regular  notice  to  quit  before  he  can  be 
ejected.  Thus,  if  a  landlord  suffer  his  tenant  to  con- 
tinue in  possession  after  the  expiration  of  his  lease, 
and  receive  rent  from  him  accruing  subsequently  to 
the  period  of  such  expiration,  he  becomes  thereby 
his  tenant  from  year  to  year  upon  the  conditions  of 
the  original  lease.  (£)  So  also,  if  a  tenant  for  life  make 
a  lease,  void  against  the  remainder-man,  and  the  lessee 
enter,  and  then  the  tenant  for  life  die,  if  the  remain- 
der-man receive  rent  from  such  lessee,  accruing  sub- 
sequently to  the  death  of  the  tenant  for  life,  such 
receipt  of  rent,  although  it  will  not  amount  to  a 
confirmation  of  the  lease,  will  be  sufficient  (unless 
from  the  inadequacy  of  the  rent  to  the  value  of 
the  premises,  the  jury  should  presume  otherwise)  (c) 
to  establish  a  tenancy  from  year  to  year,  upon  the 
terms  of  it,  between  the  remainder-man  and  the 
lessee :  and  it  will  be  no  answer  for  the  remainder- 

(a)  Doe  d.  Da  Costa  v.  Wharton,  100. 

8T.  R.  2.  Doe  d.  Putland  v.  Hilder,  (c)  Doe  d.  Brune  v.  Prideaux,  10 

2  B.  &  A.  782.  East  158.    Derm  d.  Brune  v.  Kaw- 

(6)  Bishop  v.  Howard,  2  B.  &  C.  lins,  10  East.  261. 


AS    BETWEEN    LANDLORD    AND    TENANT.  Ill 

man,  that  he  was  ignorant  of  his  title  when  he 
received  the  rent,  for  it  is  more  reasonable  that  the 
remainder-man,  who  ought  to  have  looked  into  his 
title,  should  be  bound  by  his  own  act,  than  that  the 
lessee  should  be  prejudiced  by  his  ignorance,  (a)  In 
like  manner,  when  a  party  is  let  into  possession 
under  a  lease  void  by  the  statute  of  frauds,  (6)  pay- 
ment and  receipt  of  rent  will  not  establish  the  lease, 
but  it  will  create  a  tenancy  from  year  to  year,  regu- 
lated by  its  covenants  and  conditions,  (c)  The  same 
principle  also  holds  if  the  party  come  into  possession 
under  an  agreement  or  lease,  invalid  from  any  other 
circumstance:  as  where  the  party  held  under  an 
agreement  that  the  lessee  should  pay  a  certain  rent, 
and  that  the  lessor  should  not  turn  out  the  lessee 
so  long  as  the  rent  was  duly  paid  quarterly,  and  the 
lessee  did  not  expose  to  sale  or  sell  any  article 
that  might  be  injurious  to  the  lessor  in  his  business, 
which  agreement  was  invalid,  inasmuch  as  it  would 
(if  the  tenant  complied  with  the  terms  thereof)  operate 
as  an  estate  for  life,  which  cannot  be  created  by 
such  an  instrument,  yet  the  lessee  having  been  let 
into  possession,  and  rent  having  been  paid  and 
received,  a  tenancy  from  year  to  year  was  created 
thereby.  (cT) 

The  same  rule  prevails  when  a  party  is  let  into  pos- 
session under  a  valid  agreement  for  a  future  lease. 
As  no  interest  in  the  land  passes  under  such  an  agree- 


(a)  Roe  d.  Jordan  v.  Ward,  1  H.  (c)  Doe  d.  Rigge  v.  Bell,  5  T.  R. 

Black.  97.  Doe  d.  Martin  v.  Watts,  471.  Clayton  v.  Blakey,  8  T.  R.  3. 

7  T.  R.  83.  (d)  Doe  d.  Warner  v.  Browne,  8 

(&)  29  Car.  II.  c.  3.  East.  165. 


112 


OP    THE    ACTION    OF    EJECTMENT 


ment,  no  tenancy  is  created  thereby ;  but  the  party 
being  let  into  possession,  and  rent  being  paid  and  re- 
ceived, he  becomes,  as  in  the  cases  already  mentioned, 
a  tenant  from  year  to  year,  (a) 

But  where  a  party  enters  under  an  agreement  of 
this  nature  and  continues  in  possession  for  the  period 
for  which  the  lease  was  to  be  granted,  his  tenancy 
ceases  at  the  expiration  of  that  period  without  any 
notice  to  quit,  as  it  would  have  done  if  a  lease  had 
been  executed,  (b)  , 


(a)  The  unsettled  state  of  the 
principles  and  uses  of  the  action  of 
ejectment  in  the  time  of  Lord  Mans- 
field, is  well  illustrated  by  the  deci- 
sions in  the  cases  of  Weakly  d.  Yea 
v.  Bucknell,  Cowp.  473.  (Mich. 
Term,  17  Geo.  III.)  and  Goodtitle 
d.  Estwick  v.  Way,  1  T.  R.  735. 
(Easter  Term,  27  Geo.  III.)  In  the 
former  case,  an  agreement  for  a  lease 
was  held  to  be  tantamount  to  a 
lease ;  and  the  party  making  the 
agreement  was  estopped  from  main- 
taining an  ejectment  against  the 
other  party,  although  he  had  given 
him  a  regular  notice  to  quit,  because 
"  if  the  Court  were  to  say  the  eject- 
ment ought  to  prevail,  it  would  be 
merely  for  the  sake  of  giving  the  Court 
of  Chancery  an  opportunity  to  undo 
all  again."  In  the  latter  case  a 
similar  agreement  was  held  to  form 
no  defence  to  an  ejectment,brought 
by  a  party  to  whom  the  party 
making  the  agreement  had  grant- 
ed a  term  in  the  premises  to  sa- 
tisfy creditors,  subsequently  s  to 
the  date  of  the  agreement,  al- 
though no  notice  to  quit  had 


been    given,  and   the   party    had 
paid  rent  under    the   agreement ; 
because  the  conveyance  being  made 
by  the  lessor  to  a  trustee  for  the 
benefit  of  creditors  "  was  not  a  mere 
voluntary  conveyance"  and  therefore 
the  lessor  could  not  be  considered 
as  a  trustee  for  the  defendant,  and 
as  such  restrained  "  from  bringing 
ejectment  against  his  OWICESTUI  QUE 
TRUST  ;"  and  the  agreement  for  the 
lease  "  gave  the  defendant  only  an 
equitable  title,  which  cannot  be  set  up 
in  a  court  of  law  against  the  plaintiff' 
who  luts  a  legal  title."     Upon   the 
sound  principles  by  which  the  ac- 
tion is  now  regulated,  it  is  evident 
that    these   two    decisions  should 
have  been  reversed.    In  both  cases 
the  agreement  for  the  lease,  and 
the  receiptof  rentunderit  would  have 
been  held  to  create  tenancies  from 
year  to  year,  which  would  have 
been  determined  in  the  first  case 
by  the  notice  to  quit,  and  would 
have  continued  in   the  latter,  for 
want  of  such  notice. 

(6)  Doed.Tiltv.  Stratton,  4  Bing. 
446. 


AS   BETWEEN    LANDLORD    AND   TENANT.  113 

It  is  frequently  difficult  to  determine,  from  the 
words  of  an  instrument,  whether  it  will  operate  as  a 
lease,  or  only  as  an  agreement  for  one,  and  it  may  be 
therefore  useful,  although  the  subject  does  not  strictly 
fall  within  the  limits  of  this  treatise,  shortly  to  con- 
sider the  points  which  have  arisen  in  cases  of  this 
description. 

Formerly,  when  an  agreement  contained  words  of 
present  demise,  it  was  held  to  amount  to  an  absolute 
lease,  although  covenants  were  added  prospective  of 
some  further  act  to  be  done,  such  covenants  being 
construed  to  be  merely  in  further  assurance.  As 
where,  before  the  statute  of  frauds,  a  party  said, 
u  You  shall  have  a  lease  of  my  lands  in  D.  for 
twenty-one  years,  paying  therefore  10*.  per  annum, 
make  a  lease  in  writing  and  I  will  seal  it ;"  this 
was  held  a  good  lease  by  parol,  and  the  making 
of  it  in  writing  was  but  a  further  assurance.  («) 
So  also.,  and  for  a  similar  reason,  the  words  doth 
let  in  articles  of  agreement,  have  been  held  a 
present  demise,  although  there  was  a  further  cove- 
nant "  that  a  lease  should  be  made  and  sealed,  accord- 
ing to  the  effect  of  the  articles,  before  the  feast  of  All 
Saints  next  ensuing."  (£)  But  a  different  principle 
now  prevails.  The  intention  of  the  parties  is  alone 
considered,  and,  to  use  the  words  of  Lord  Ch.  B. 
Gilbert,  "  if  the  most  proper  form  of  words  of  leas- 
ing are  made  use  of,  yet  if  upon  the  whole  there 
appears  no  such  intent,  but  that  the  instrument  is 

(a)  Maldon's  case,  Cro.  Eliz.  33.          (6)  Harrington  r.  Wise,Cro.  Eliz. 

486.— Noy.  57. 


114        OF  THE  ACTION  OF  EJECTMENT 

only  preparatory  and  relative  to  a  future  lease  to  be 
made,  the  law  will  rather  do  violence  to  the  words, 
than  break  through  the  intent  of  the  parties,  by  con- 
struing a  present  lease,  when  the  intent  was  mani- 
festly otherwise."  (a)  Thus,  where  articles  were 
drawn  up  as  follows,  "  A.  doth  demise  his  close  to  S. 
to  have  it  for  forty  years,"  and  a  rent  was  reserved 
with  a  clause  of  distress,  upon  which  articles  a  memo- 
randum was  also  written,  "  that  the  articles  were  to  be 
ordered  by  counsel  of  both  parties,  according  to  the 
due  form  of  law,"  it  was  ruled  that  the  articles  were 
not  a  sufficient  lease,  (b)  So  where  the  words  were 
"  A.  doth  agree  to  let,  and  B.  agrees  to  take,"  for  a 
certain  term  at  a  certain  rent,  all  his  estates,  the  said 
B.  to  enter  upon  the  premises  immediately,  and  it  was 
further  agreed  that  leases  with  the  usual  covenants 
should  be  made  and  executed  by  a  certain  date ;  the 
stipulation  that  leases  should  be  so  drawn,  was  held 
to  show  plainly  that  it  was  not  the  intention  of  the 
parties  that  such  agreement,  although  containing 
words  of  present  demise,  should  operate  as  a  lease, 
but  only  to  give  the  defendant  a  right  to  the  imme- 
diate possession  till  a  lease  could  be  drawn,  (c)  So 
also  where  an  instrument  was  executed  upon  an 
agreement-stamp  in  November,  setting  forth  the  con- 
ditions of  letting  a  farm,  and  the  regulations  to  be 
observed  by  the  tenant,  that  the  term  would  be  from 
year  to  year,  and  the  premises  to  be  entered  upon  in 
February,  and  that  "  a  lease  was  to  be  made  upon 

(a)  Bac.  Ab.  tit.  Leases  164. —  (c)  Goodtitle  d.  Estwick  v.  Way, 

Baxter  d.  Abrahall  v.  Browne,  2  1  T.  R.  735.  Phillips  v.  Hartley, 

Black.  973—4.  3  C.  &  P.  121. 

(6)  Sturgion  v.  Painter,  Noy.  128. 


AS    BETWEEN    LANDLORD    AND    TENANT.  1 15 

those  conditions  with  all  usual  covenants,"  at  the 
foot  of  which  the  defendant  wrote,  "  I  agree  to  take 
Lot  1.  (the  premises  in  question)  at  the  rent  of,  $c. 
subject  to  the  covenants;"  such  instrument  was 
held  to  be  an  agreement  for  a  lease,  and  not  a  present 
demise,  there  being  not  only  a  stipulation  for  a  future 
lease,  but  time  given  to  prepare  it  before  the  com- 
mencement of  the  term,  and  no  present  occupation  as 
tenant  contracted  for.  (a)  So  also,  where  upon  an 
agreement  stamp,  A.  agreed  to  demise  and  let  certain 
copyhold  premises  for  a  certain  term  at  a  certain  rent, 
and  further  undertook  to  procure  a  licence  to  let 
such  premises,  the  court  held,  that  the  instrument  was 
an  executory  agreement  only,  for  two  reasons ;  first, 
because  if  it  were  held  to  be  a  lease,  a  forfeiture 
would  be  incurred,  which  would  be  contrary  to  the 
intent  of  the  parties,  who  had  cautiously  guarded 
against  it,  by  the  insertion  of  a  covenant  that  a  licence 
to  lease  should  be  procured  from  the  lord ;  and,  se- 
condly, because  the  stamp  was  conformable  to  the 
nature  of  an  agreement  for  a  lease,  and  not  adapted 
to  an  absolute  lease,  (b)  So  also  where  the  words 
were  u  that  the  said  mills  he  shall  hold  and  enjoy, 
and  I  engage  to  give  a  lease  in  for  a  certain  term," 
&c.  it  was  ruled  that  the  words  "  shall  hold  and  enjoy" 
would  have  operated  as  words  of  present  demise,  if 
they  had  not  been  controlled  by  those  which  fol- 
lowed, (c)  So  also  where  the  words  were,  u  agreed 
this  day  to  let  my  house  to  B.  for  a  certain  term,  "  a 


(a)  Tempest  v.  Rawlins,  13  East.       739. 

18.  (c)  Roe  d.  Jackson  v.  Ashburner, 

(6)  Doe  d.  Coore  ».  Clare,  2  T.  R.       5  T.  R.  163. 


110  OP    THE    ACTION    OF    EJECTMENT 

clause  to  be  added  in  the  lease  to  give  my  son  a 
power,"  &c.  it  was  considered  to  be  manifest  from 
the  latter  words,  that  a  future  instrument  of  demise 
was  contemplated,  (a)  So  also  where  the  agreement 
was  "  memorandum  of  an  agreement  between  A.  and 
JB.y  A.  agrees  to  let  on  lease,  with  purchasing  clause 
for  the  term  of  twenty-one  years,  all  that  house,  &c. 
entering  on  the  premises  at  any  time. on  or  before  the 
llth  of  February,  at  the  net  clear  rent  of  £83  per 
year,  and  to  keep  all  premises  in  as  good  repair  as 
when  taken  to,  the  rent  payable  quarterly,"  it  was 
held  to  be  only  an  agreement  preparatory  to  a  de- 
mise, and  not  an  actual  demise;  Abbott,  C.  J.  ob- 
serving, that  it  had  not  any  one  of  the  forms  of  a 
lease  ;  that  it  began,  "  memorandum  of  an  agree- 
ment, A.  agrees  to  let  on  lease,  (which  obviously 
meant  to  execute  a  lease ;)  that  it  was  impossible  to 
infer  when  the  tenancy  was  to  commence,  or  the 
rent  to  become  due ;  and  that  the  whole  was  left  in 
doubt.  (£)  And  in  a  case  where,  in  an  instrument 
which  contained  words  of  present  demise,  there  was 
no  direct  reference  to  any  future  lease,  but  it  ap- 
peared, upon  taking  the  whole  instrument  together, 
that  a  future  lease  was  intended,  the  same  rule  of 
construction  prevailed.  In  this  latter  case  the  agree- 
ment was  "  A.  agrees  to  let  to  B.  all  his  farm,  &c. 
(except  three  pieces  of  land)  to  hold  for  twenty-one 
years,  determinate  at  the  end  of  the  first  fourteen, 
at  the  yearly  rent  of  261.  payable,  &c.  and  at  and 
under  all  other  usual  and  customary  covenants  and 


(a)  Doe  d.  Bromfield  v.  Smith,         (6)  Dunk  v.  Hunter,  5  B.  &  A. 
6  East.  530.  322. 


AS    BETWEEN    LANDLORD    AND    TENANT.  H7 

agreements,  as  between  landlord  and  tenant  where 
the  premises  were  situate  : — A.  to  allow  a  proportion- 
ate part  of  the  rent,  for  the  three  pieces  of  land 
above  excepted ;"  and  the  court  held  that  it  amounted 
only  to  an  agreement  for  a  lease  for  the  following  rea- 
sons :  because  "  at  the  yearly  rent,  &c.w  and  u  at  and 
under  all  usual  covenants,  &c."  is  not  the  language  in 
which  a  lawyer  would  introduce  into  a  lease  the  tech- 
nical covenant  for  further  assurance,  but  contemplates 
the  entire  making  of  an  original  lease ;  and  because 
no  landlord  or  tenant  of  common  sense  would  enter 
on  a  term  for  twenty-one  years,  without  ascertaining 
what  were  the  terms  on  the  one  side  and  the  other, 
by  which  they  were  to  be  bound  for  that  period,  and 
what  was  to  be  the  rent  apportioned  for  the  excepted 
premises,  (a)  But  where  an  instrument,  upon  an 
agreement  stamp,  was  as  follows,  u  A.  agrees  to  let, 
and  B.  agrees  to  take,  all  that  land,  &c.  for  the  term 
of  sixty-one  years  from  Lady-day  next,  at  the  yearly 
rent  of  l'2Ql. ;  and  for  and  in  consideration  of  a  lease 
to  be  granted  by  the  said  A.  for  the  said  term  of 
years,  the  said  B.  agrees  to  expend  2000/.  in  build- 
ing within  four  years  five  houses  of  a  third  class  of 
building ;  and  the  said  A.  agrees  to  grant  a  lease  or 
leases  of  the  said  land,  as  soon  as  the  said  houses  are 
covered  in,  and  the  said  B.  agrees  to  take  such  lease 
or  leases,  and  execute  a  counterpart  or  counterparts 
thereof: — this  agreement  to  be  considered  binding 
till  one  fully  prepared  can  be  produced ;"  the  court 
held  the  same  to  be  a  lease,  considering  it  to  be  the 
intention  of  the  parties,  that  the  tenant,  who  was  to 

(«)  Morgan  d.  Dowding  v.  Bi&sell,  3  Taunt.  65. 


J  18         OF  THE  ACTION  OF  EJECTMENT 

expend  so  much  capital  upon  the  premises  within 
the  first  four  years  of  the  term,  should  have  a  present 
legal  interest  in  the  term,  which  was  to  be  binding 
upon  both  parties ;  although  when  a  certain  progress 
was  made  in  the  buildings,  a  more  formal  lease  or 
leases,  in  which  perhaps  the  premises  might  be  more 
particularly  described  for  the  convenience  of  under- 
letting or  assigning,  might  be  executed,  (a)  So  also 
where  the  instrument  was  "  A.  agrees  to  let,  and  also 
upon  demand  to  execute,  to  B.  a  lease  of  certain 
lands,  and  B.  agrees  to  take,  and  upon  demand  to 
execute,  a  counterpart  of  a  lease  of  the  said  lands  for 
a  certain  term  at  a  certain  rent ;  the  lease  to  contain 
the  usual  covenants,  and  the  agreement  to  bind  until 
the  said  lease  be  made  and  executed,  &c."  it  was 
held  to  be  a  present  demise  ;  and  that  the  agreement 
for  a  future  lease,  with  further  covenants,  was  for  the 
better  security  of  the  parties.  (6)  And  in  the  last 
case  upon  the  subject  where  the  instrument  was  in 
the  following  form,  "  memorandum  of  agreement  made 
on,  &c.  between  A.  and  B.,  the  said  A.  for  the  consi- 
derations hereinafter  mentioned,  agrees  to  grant 
seal  and  execute  unto  B.  a  legal  and  effectual  lease 
of  all  that  messuage,  &c.  to  hold  the  same  unto  B. 
his  executors,  &c.  from  8cc.  for  the  term  of  five  years 
at  and  under  the  yearly  rent  of,  &c.  to  be  made  pay- 
able quarterly,  and  under  and  subject  to  covenants 
by  and  on  the  part  of  B.  to  pay  the  rent,  and  all 
taxes,  to  keep  the  premises  in  repair,  to  paint  the 
outside  every  third  year  of  the  term,  (and  certain 
other  covenants  which  need  not  be  enumerated,) 

(a)   Poole  v.  Bentley,   12  East.         (b)  Doe  d.  Walker  v.  Groves,  15 
168.  East.  2-44. 


AS  BETWEEN  LANDLORD  AMD  TENANT.     119 

and  the  said  B.  agreed  to  accept  and  take  a  lease 
upon  the  terms  aforesaid,  and  in  the  mean  time,  and 
until  such  lease  shall  be  made  and  executed,  to  pay 
the  rent  as  aforesaid,  and  to  hold  the  premises  sub- 
ject to  the  covenants  above  mentioned:  and  the 
said  B.  further  agreed  to  put  the  premises  into  good 
and  tenantable  repair  at  his  own  expense,  and  to 
complete  all  such  repairs  forthwith,  with  power  of 
re-entry  for  non-payment  of  rent  or  non-performance 
of  covenants  before  the  lease  should  be  made  and 
executed."  The  Court  held  that  this  instrument 
amounted  to  a  present  demise ;  observing,  that 
although  there  were  conflicting  expressions,  it  clearly 
was  the  paramount  intention  of  the  parties  that  the 
instrument  should  operate  as  a  lease;  for  that  the 
defendant  was  to  hold  according  to  covenants,  some 
of  which  were  inconsistent  with  a  tenancy  from  year 
to  year,  as  that  to  paint  once  in  three  years,  and  that 
for  putting  the  premises  in  repair  before  he  com- 
menced his  occupation ;  and  that  there  could  be  no 
doubt  it  was  meant  that  there  should  be  a  formal 
lease,  but  that  the  tenant  should  hold  in  the  mean 
time  under  a  demise,  upon  the  same  terms  as  if  that 
lease  had  been  executed,  (a) 

But  to  return  to  the  subject  of  implied  tenancies 
from  year  to  year.  In  all  the  cases  already  men- 
tioned, the  mode  of  acknowledging  the  tenancy  was 
by  the  payment  and  receipt  of  rent,  which  indeed  is  the 
common  evidence  in  cases  of  this  nature.  But  the 
intention  to  create  such  a  tenancy  may  be  inferred 

(a)  1'inero  u.  Judson,  (j  Biiig.  '206. 


OF    THE    ACTION    OF    EJECTMENT 

from  other  circumstances.  Thus,  where  lands  de- 
scended to  an  infant,  with  respect  to  whom  the  te- 
nant in  possession  was  a  trespasser,  and  an  ejectment 
was  brought  on  the  demise  of  the  infant,  and  compro- 
mised by  his  attorney  upon  certain  terms,  one  of 
which  was,  that  the  tenant  should  attorn  to  the  infant, 
it  was  ruled  by  Lord  Kenyon,  C.  J.  at  Nisi  Prius, 
upon  a  second  ejectment  being  brought  by  the  in- 
fant, when  he  attained  his  full  age,  that  although  the 
infant  was  no  party  to  the  agreement,  nor  had  con- 
firmed it,  nor  received  rent  since  he  came  of  age,  yet 
that  such  agreement,  having  been  entered  into,  with- 
out fraud  or  collusion,  after  an  ejectment  brought 
at  his  suit,  had,  by  his  acquiescence  therein,  esta- 
blished the  defendant's  title  as  against  himself,  and 
created  a  new  tenancy,  which  could  only  be  deter- 
mined by  a  notice  to  quit,  (a)  So  also  where  ^.feme- 
covert  lived  many  years  separated  from  her  husband, 
and  during  that  time  received  to  her  separate  use  the 
rents  of  certain  lands,  which  came  to  her  by  devise 
after  separation,  it  was  presumed,  that  she  received 
the  rents  by  her  husband's  authority,  and  held,  that  a 
notice  to  quit  must  be  given  by  him  before  he  could 
maintain  ejectment,  (b) 

It  has  also  been  held  in  a  recent  case,  that  where 
a  rector  had  suffered  persons,  who  were  in  possession 
as  tenants  prior  to  his  incumbency,  to  continue  in 
quiet  and  undisturbed  possession  for  eight  months 
after  his  institution,  he  must  be  presumed  to  have 
assented  to  the  continuance  of  their  tenancy  under  the 

(a)  Doe  d.  Miller  v.  Noden,  2         (6)  Doe  d.  Leicester,  v.  Biggs,  1 
Esp.  528.  Taunt.  367. 


AS   BETWEEN    LANDLORD    AND    TENANT.  121 

terms  of  their  previous  holding,  and  therefore  unable 
to  eject  them  without  a  notice  to  quit,  (a) 

This  is  the  only  case  in  whicb  a  mere  permission 
by  the  owner  to  occupy  premises,  without  some 
positive  act  of  acknowledgment,  has  been  held  suffi- 
cient to  create  a  tenancy  requiring  a  regular  notice  to 
quit,  but  the  principle  seems  applicable  to  all  cases 
where  the  occupant  has  been  tenant  to  a  previous 
owner,  and  his  tenancy  has  expired  on  the  determi- 
nation of  his  landlord's  estate. 

But  where  a  party  has  put  another  into  possession 
with  a  view  to  a  future  tenancy  or  purchase,  or  under 
circumstances  of  a  similar  nature,  although  he  may 
have  done  no  act  acknowledging  a  regular  tenancy, 
he  cannot  afterwards  eject  him  without  a  demand  of 
possession,  unless  some  wrongful  act  has  been  done 
by  such  party  determining  his  lawful  possession. 

Thus,  where  a  party  was  let  into  possession,  under 
an  agreement  for  the  purchase  of  the  land,  and  had 
possession  formally  given  to  him,  and  paid  part  of 
the  purchase-money,  and  there  was  no  default  on  his 
part,  (6)  a  demand  of  possession  was  held  necessary,  (c) 
So  likewise  where  it  was  agreed  that  A.  should  sell 
to  B.  certain  premises  if  it  turned  out  that  he  had  a 
title  to  them,  and  that  B.  should  have  immediate  pos- 
session, A.  was  not  permitted  to  maintain  ejectment 

(a)  Doe  d.  Gates  v.  Somerville,  M.  &  S.  148—50. 

6  B.  &  C.  136.    Doe  d.  Kerby  v.  (<•)  Right  d.  Lewis  v.  Beard,  13 

Carter,  1  R.  &  M.  237.  East.  2 10. 

(6)  Doe  d.  Parker  v.  Boulton,  6 


122  OP    THE    ACTION    OF    EJECTMENT 

against  B.  without  a  demand  of  possession,  although 
the  object  of  the  action  was  to  try  the  title  to  the 
premises,  (a)  So  likewise  where  a  tenant,  whose 
lease  had  expired,  continued  in  possession,  pending 
a  treaty  for  a  further  lease,  although  no  tenancy  from 
year  to  year  was  created  by  such  possession  and  ne- 
gociation,  the  landlord  was  thereby  precluded  from  re- 
covering in  ejectment,  upon  a  demise  anterior  to  the 
termination  of  the  treaty.  (#)  So  also  when  a  party 
is  admitted  into  possession  under  an  invalid  lease  or 
agreement,  the  landlord  must  demand  possession,  or 
in  some  other  manner  determine  the  will,  before  he 
can  maintain  ejectment,  although  he  has  not  acknow- 
ledged the  party  as  his  tenant,  (c) 

But  where  the  vendor  of  a  term,  after  payment  of 
part  of  the  purchase-money,  let  the  purchaser  into 
possession  upon  an  agreement,  that  he  (the  purchaser) 
should  have  possession  of  the  premises  until  a  given 
day,  paying  the  reserved  rent  in  the  meanwhile,  and 
that  if  he  should  not  pay  the  residue  of  the  purchase- 
money  on  that  day,  he  should  forfeit  the  instalments 
already  paid,  and  not  be  entitled  to  an  assignment  of 
the  lease ;  and  the  purchaser  failed  to  complete  the 
purchase  at  the  appointed  day  ;  it  was  ruled  that  an 
ejectment  might  be  maintained  without  even  a  de- 
mand of  possession,  the  purchaser  having  by  his  own 


(a)  Doe  d.  Newby  v.  Jackson,  1  Blakey,  8  T.  R.  3.      Thunder  d. 
B.  &  C.  448.  Weaver  v.  Belcher,  3   East.  449. 

(b)  Doe    d.    Hollingsworth,    v.  451.     Doe  d.  Warner  v.  Browne, 
Stennet,  <i  Esp.  716.  8    East.  165.     Hegan  v.  Johnson, 

(c)  Goodtitle  d.  Herbert  v.  Gal-  2  Taunt.  148. 
loway,   4  T.  R.  680.     Clayton   v. 


AS   BETWEEN    LANDLORD    AND    TENANT.  123 

act  determined  his  interest  in  the  premises,  (a)  And 
where  a  man,  having  obtained  possession  of  a  house 
without  the  landlord's  privity,  afterwards  entered 
into  a  negotiation  with  him  for  a  lease,  which  failed, 
the  same  rule  of  construction  seems  to  have  pre- 
vailed, (b)  So  also  where  upon  an  agreement  for 
a  sale  to  be  completed  by  a  certain  day,  the  intended 
purchaser  agreed  with  A.  to  let  the  premises  to  him 
to  commence  from  that  day,  and  A .  was  let  into  pos- 
session prior  to  that  day  by  the  permission  of  the 
intended  seller,  and  the  party  failed  to  complete  his 
purchase,  A.  was  held  not  entitled  to  a  demand  of 
possession  before  ejectment  brought,  his  possession 
being  only  the  possession  of  that  party  by  anticipa- 
tion, (c) 

As  the  implied  tenancies  from  year  to  year,  which 
have  here  been  treated  of,  depend  wholly  upon  the 
presumption,  that  it  was  the  intention  of  the  parties 
to  create  them,  evidence  may  always  be  received  to 
rebut  such  presumption,  and  show  their  real  mean- 
ing. Thus,  where  a  remainder-man,  on  the  death 
of  the  tenant  for  life,  gave  notice  to  the  tenant  in 
possession  under  a  lease,  granted  by  the  tenant  for 
life,  but  void  against  the  remainder-man,  to  quit  at 
the  end  of  six  months,  and  subsequently  to  the  giving 
of  the  notice,  but  before  its  expiration,  received  a 
quarter's  rent,  accruing  after  the  death  of  the  tenant 
for  life,  it  was  ruled  by  Blackstone,  J.  that  the  pre- 
vious notice  to  quit  rebutted  the  presumption  of  a 

(a)  Doe  d.  Leeson  v.  Sayer,   3  Camp.  505. 

Camp.  8.    Doe  d.  Moore  v.  Law-  (r)  Doe  d.  Parker  v.  Boulton,  6 

der,  1  Stark.  SOS.  M.  &  S.  148. 

(6)  Doe  tl.  Knight  v.  Quigley,  2 


124        OF  THE  ACTION  OF  EJECTMENT 

tenancy  from  year  to  year,  raised  by  the  acceptance 
of  the  rent,  (a)  So  also  where  the  rent  is  not  paid, 
and  received,  as  between  landlord  and  tenant,  but 
upon  some  other  consideration,  no  tenancy  from 
year  to  year  will  be  created.  The  payment  of  a 
customary  rent  for  copyhold  premises,  has  been  held 
to  be  a  payment  of  this  nature ;  and,  if  the  tenant 
hold  such  premises  by  a  title  or  tenure,  which  is  not 
supported  by  the  custom  of  the  manor,  the  receipt 
of  the  quit-rent  from  him  by  the  lord  will  not  create 
a  tenancy  from  year  to  year.  (6) 

Upon  the  same  principle,  where  a  tenant  in-tail 
received  an  ancient  rent,  which  was  but  trifling  when 
compared  with  the  real  value  of  the  premises,  and 
which  had  been  reserved  under  a  void  lease  granted 
by  the  tenant  for  life  under  a  power,  upon  a  special 
case  reserved  for  the  opinion  of  the  Court  of  King's 
Bench,  they  intimated  that  a  jury  should  be  strongly 
advised  not  to  imply  a  tenancy  from  year  to  year 
from  such  payment  and  receipt,  (c)  although  it  would 
amount  to  such  an  acknowledgment  of  a  tenancy 
at  will,  as  would  require  a  demand  of  possession  be- 
fore ejectment  could  be  maintained,  (d) 

If  the  tenant  set  his  landlord  at  defiance,  and  do 
any  act  disclaiming  to  hold  of  him  as  tenant,  as,  for 
instance,  if  he  attorn  to  some  other  person,  no  notice 

(a)  Sykes  d.  Murgatoyd  v. ,  (c)  Roe  d.  Brune  v.  Prideaux,  10 

cited  in  Right  d.  Fowler  v.  Darby,  East.  158. 

1  T.  R.  161.  (d)  Denn  d.  Brune  v.  Rawlins, 

(/')   Right  d.  Dean  of  Wells   v.  10  East.  261. 
Bawden,  3  East.  260. 


AS    BETWEEN    LANDLORD    AND    TENANT.  125 

to  quit  will  be  necessary  ;  for,  in  such  case,  the  land- 
lord may  treat  him  as  a  trespasser,  (a)  It  has,  how- 
ever been  held  that  a  refusal  to  pay  rent  to  a  devisee 
under  a  contested  will,  accompanied  with  a  declara- 
tion that  he  (the  tenant)  was  ready  to  pay  the  rent 
to  any  person  who  was  entitled  to  receive  it,  was  not 
a  disavowal  sufficient  to  dispense  with  the  necessity 
of  a  regular  notice.  (6) 

When  a  tenant  from  year  to  year  dies,  his  interest 
in  the  lands  vests  in  his  personal  representative,  who 
will  continue  to  hold  the  premises  upon  the  same 
terms  as  the  original  tenant,  and  be  entitled  to  the 
same  notice  to  quit,  (c)  If,  however,  by  the  terms 
of  the  agreement,  no  interest  vests  in  the  representa- 
tive, no  notice  to  quit  will  be  necessary.  Thus  where 
A.  agreed  to  demise  a  house  to  B.,  during  the  joint 
lives  of  A.  and  B.,  and  B.  entered  in  pursuance  of 
the  agreement,  and  before  any  lease  was  executed, 
died,  after  which  ^B.'s  executor  took  possession  of  the 
house ;  it  was  held  that  A.  might  maintain  ejectment 
against  the  executor  without  notice  to  quit,  because 
the  death  of  B.  determined  his  interest,  and  con- 
sequently no  interest  vested  in  the  executor.  The 
court  were  also  of  opinion  that  the  case  would  have 
been  the  same  if  the  lease  had  been  executed.  (cT) 

In  like  manner  the  situation  of  a  tenant  from  year 


(a)  B.  N.  P.  96.  (c)  Doe  d.  Shore  v.  Porter,  3 

(6)  Doe  d.  Williams  v.  Pasquali,  T.  R.   13.      Parker  d.    Walker  v. 

Peake's  R.  196.   Vide  Doe  d.  Cal-  Constable,  3  Wils.  25. 

vert  v.  Frowd,  4  Bing.  557.  S.  C.  (rf)  Doe  d.  Bromfield  v.  Smith,  6 

1  M.  &  P.  480.  East.  530. 


126  OF    THE    ACTION    OF    EJECTMENT 

to  year  remains  unaltered,  notwithstanding  the  death 
of  the  landlord,  and  he  will  be  entitled  to  his  regular 
notice  to  quit,  whether  the  lands  descend  to  the  heir 
(although  such  heir  be  a  minor,)  (a)  or  pass  to  the 
personal  representative,  or  devisee,  of  the  deceased. 

We  are  next  to  consider  the  persons  by  whom, 
and  to  whom,  the  notice  to  quit  is  to  be  given. 

The  notice  to  quit  must  be  given  by  the  person  in- 
terested in  the  premises,  or  his  authorized  agent ;  and 
such  agent  must  be  clothed  with  his  power  to  give 
the  notice,  at  the  time  when  the  notice  is  given;  a 
subsequent  assent  on  the  part  of  the  landlord  being 
not  sufficient  to  establish  by  relation  a  notice,  given 
in  the  first  instance  without  his  authority.  And  this 
principle  is  founded  in  reason  and  good  sense,  for  as 
the  tenant  is  to  act  upon  the  notice  at  the  time  it  is 
given  to  him,  it  ought  to  be  such  an  one  as  he  may 
act  upon  with  security ;  and  if  an  authority  by  re- 
lation were  sufficient,  the  situation  of  the  tenant  must 
remain  doubtful,  until  the  ratification  or  disavowal  of 
the  principal,  and  he  would  thereby  sustain  a  mani- 
fest injustice,  (b) 


(a)  Maddon  d.  Baker  v.  White,  2  authority  to  give  a  notice  to  quit  at 

T.  R.  159.  the  time  of  giving  the  notice,  in 

(6)  Right  d.  Fisher  v.  Cuthell,  order  to  render  it  valid.  The 

5  East.  491.  Notwithstanding  the  facts  of  that  case  were  shortly  as 

printed  report  of  the  case  of  Good-  follows: — A.  B.  C.  and  D.  were 

title  d.  King  v.  Woodward,  3  B.  &  joint  tenants ;  E.  gave  the  tenant 

A.  689,  I  have  not  altered  the  in  possession  a  written  notice  to 

principle  laid  down  in  the  for-  quit,  purporting  to  be  given  as  the 

mer  edition  of  this  work :  viz,  agent  and  on  the  part  of  all  the 

that  an  agent  must  be  clothed  with  joint  tenants ;  and  at  the  time  of 


AS    BETWEEN    LANDLORD    AND    TENANT. 


127 


When  also  two  or  more  persons  are  interested  in 
the  premises,  a  notice  to  quit  given  by  one,  on  behalf 
of  himself  and  co-tenants,  will  be  valid  only  as  far  as 
his  own  share  is  concerned,  (a)  unless  he  was  acting  at 


giving  such  notice  E.  had  a  written 
authority  so  to  do  from  A.  and  B., 
which  authority  was  subsequently 
signed  by   C.  and  D.    According 
to  a  note  taken  by   myself  of  the 
judgment  of  the  Court,  the  princi- 
ple  upon  which    the   notice   was 
held  sufficient  was,    "that  a  no- 
tice to  quit    given    by  one  joint 
tenant  was  binding  upon  all,  be- 
cause otherwise  the  lessee  would 
become  a    joint  tenant  with    the 
party  giving  him  notice,  by  which 
he  would  be  subject  to  great  in- 
convenience, and  the  estate  of  the 
co-joint    tenants  would     be    pre- 
judiced; and,  therefore,  the  notice 
must  be  taken  to  be  an  act  bene- 
ficial   to    the    estate,    and  conse- 
quently binding  upon  all  the  joint 
tenants;"  and  not  as  stated  in  the 
printed  report;  that  "  a  notice  given 
by  an  agent  is  sufficient,  if  his  au- 
thority be  subsequently  recognized." 
The  report  is  also  I  believe  incorrect 
in  stating,  "  that  to  entitle  joint 
tenants  to   recover    in    ejectment 
against  a  tenant  from  year  to  year, 
the  notice  to  quit  must  be  signed 
by  all  the  joint  tenants  at  the  time  it 
is  received ;"  the  reverse  of  this  pro- 
position was  according  to  my  note 
maintained,    viz.    "  that  a  notice 
signed  by  one  joint  tenantwas  bind- 
ingupon  all,"  and  indeed  such  must 
have  been  the  decision  if  I  have 
taken  a  correct  view  of  the  princi- 


ple of  the  judgment.  Without  in- 
quiring into  the  soundness  of  that 
principle,  or  whether  it  would  not 
have  been  wiser  to  have  placed  joint 
tenants,  parceners,  and  tenants  in 
common,  on  the  same  footing  with 
respect  to  notices  to  quit,  there  can 
he  no  doubt  it  is  the  only  principle 
upon  which  that  judgment  can  be 
supported  with  good  faith  to  the  te- 
nant; because  if  after  the  delivery 
of  the  notice  an  option  remained  to 
the  parties  who  had  not  then  signed 
the  authority  to  confirm  or  disallow 
it,  (as  assumed  in  the  printed  re- 
port), the  tenant  had  not  "  such  a 
notice  as  he  could  act  upon  with 
certainty  at  the  time  it  was  given," 
to  which  all  the  authorities  say  he 
is  entitled ;  but  such  certainty  com- 
menced only  from  the  time  of  the 
recognition  of  the  authority  of  the 
agent  by  those  parties,  which  might 
have  been  only  the  day  before  the  no- 
tice expired.  And  as  an  option  to  re- 
cognize includes  of  necessity  a  right 
to  disallow,  how  can  a  tenant  pos- 
sibly regulate  his  conduct  as  to  the 
management  of  his  farm,  &c.  if  it 
may  be  doubtful  until  the  very  day 
on  which  his  notice  expires,  whe- 
ther he  will  be  permitted  to  go,  or 
compelled  to  stay  ? 

(a)  Doe  d.  Whayman  v.  Chaplin, 
3  Taunt.  120.  Doe  d.  Green  ». 
Baker,  8  Taunt.  241. 


128  OF    THE  ACTION    OF    EJECTMENT 

the  time  under  the  authority  of  the  other  parties  men- 
tioned in  the  notice.  But  this  rule  it  seems  does  not 
hold  when  the  parties  are  interested  as  joint  tenants ; 
because  of  the  rule  of  law,  that  every  act  of  one  joint 
tenant,  which  is  for  the  benefit  of  his  co-joint  tenant, 
shall  bind  him,  and  it  must  be  predicated  that  the 
determination  of  the  tenancy  by  such  notice  is  for  the 
benefit  of  the  estate,  (a)  And  where  several  tenants  in 
common  are  interested,  as  many  of  them  as  give 
notices  may  recover  their  respective  shares,  (6)  al- 
though the  others  do  not  join,  unless  indeed  by  the 
conditions  of  the  tenancy,  it  is  rendered  necessary 
for  all  the  parties  to  concur  in  the  notice,  in  which 
case  a  notice  given  by  some  of  the  parties,  without 
the  junction  or  authority  of  their  companions,  will  be 
altogether  invalid  (a) 

Where  A.  and  B.,  two  tenants  in  common,  had 
agreed  to  divide  their  estate,  and  that  Blackacre 
should  belong  to  A. ;  and  the  occupier  of  Blackacre 
afterwards,  and  with  knowledge  of  this  agreement, 
paid  his  whole  rent  to  A.,  and  afterwards  received 
from  him  a  notice  to  quit,  such  notice  was  held  suffici- 
ent for  both  moieties,  although  the  deed  of  partition 
was  not  signed,  because  the  tenant  by  payment  of 
rent  to  B.  for  the  whole  premises,  had  estopped 
himself  from  disputing  his  title  to  them,  (c) 

The  steward  of  a  corporation  may  give  a  notice  to 

(a)  Right  tf.  Fisher  v.  Cuthell,  5  ker,8Taunt.  241. 

East.  491.  Ante.  p.  126.  note  (i).  (c)  Doe  d.  Pritchett  v.  Mitchell,  1 

(6)  Doe  d.  Whayman  v.  Chaplin,  B.  &  B.  11.     S.C.  3  B.  Moore,  229. 
3  Taunt.  120.     Doe  d.  Green  v.  Ba- 


AS    BETWEEN    LANDLORD    AND   TENANT.  129 

quit,  without  a  power  under  the  corporation  seal  for 
so  doing ;  and  if  the  corporation  afterwards  bring  an 
ejectment  upon  such  notice,  it  will  not  be  necessary 
to  give  any  other  evidence  of  his  authority,  than  that 
he  is  steward ;  for  the  corporation  by  bringing  the 
ejectment  show  that  they  authorized  and  adopt  the 
act  of  their  officer,  (a) 

A  receiver  appointed  by  the  Court  of  Chancery, 
with  a  power  to  let  the  lands,  is  an  agent  sufficiently 
authorized  to  give  a  notice  to  quit ;  for  if  he  have  an 
authority  to  let,  he  must  be  taken  to  have  a  power  of 
determining  the  letting,  as  he  must  determine  for  how 
long  he  will  let.  (b) 

Where  a  lease  contained  a  proviso,  that  if  either  of 
the  parties  should  be  desirous  to  determine  it  in  seven 
or  fourteen  years,  it  should  be  lawful  for  either  of 
them,  his  executors,  or  administrators,  so  to  do  upon 
twelve  months'  notice  to  the  other  of  them,  his  heirs, 
executors,  or  administrators,  it  was  considered  that 
the  words  executors,  or  administrators,  were  put  for 
representatives  in  general,  and  that  a  notice  might 
be  given  by  an  assignee  of  either  party,  or  by  the 
heir,  or  devisee,  as  well  as  by  the  parties  themselves, 
their  executors,  or  administrators ;  because,  other- 
wise, in  case  of  an  assignment,  or  devise,  the  right  of 
determining  the  term  would  be  taken  from  the  per- 
sons interested  in  it,  and  given  to  a  mere  stranger, 


(a)  Roe  d.  Dean  of  Rochester  v.      2694.    Doe  d.   Marsack  v.    Read, 
Pierce,  2  Campb.  96.  12  East.  57.  61. 

(6)  Wilkinson  v.    Colley,  Burr. 


130  OP    THE  ACTION    OF    EJECTMENT 

having  no  interest  therein,  (a)  But,  where  the  de- 
mise was  for  twenty-one  years,  if  both  parties  should 
so  long  live,  but  if  either  should  die  before  the  end  of 
the  term,  then  the  heirs  and  executors,  &c.  of  the 
party  so  dying,  might  determine  the  lease  by  giving 
twelve  months'  notice  to  quit,  it  was  holden,  that  this 
power  extended  only  to  the  representative  of  the  party 
dying,  and  that  the  lease  could  not  be  determined  by 
a  notice  to  quit  given  by  the  lessor,  after  the  lessee's 
death,  to  his  representative.  (6) 

When  the  relation  of  landlord  and  tenant  subsists, 
difficulties  can  seldom  occur  as  to  the  party  upon 
whom  the  notice  should  be  served.  The  service 
should  invariably  be  upon  the  tenant  of  the  party 
serving  the  notice,  notwithstanding  a  part,  or  even 
the  whole  of  the  premises,  may  have  been  under-let 
by  him.  And  in  a  case  where  the  service  was  upon 
a  relation  of  the  under-tenant  upon  the  premises, 
Lord  Ellenborough,  C.  J.  ruled  the  service  to  be  in- 
sufficient, although  the  notice  was  addressed  to  the 
original  tenant,  (c)  The  original  tenant  is  also  liable 
to  an  ejectment,  at  the  expiration  of  the  notice,  for 
the  lands  in  the  possession  of  his  under-tenants,  al- 
though he  may,  on  his  part,  have  given  proper  no- 
tices to  them,  and  delivered  up  such  parts  of  the 
premises  as  were  under  his  own  controul.  (d) 


(a)  Roe  d.  Bamford  v.  Hayley,  T.  1811.  M.  S. 
12  East.  464.  (d)  Roe  v.  Wiggs,  2  N.  R.  330. 

(ft)  Leggd. Scott i;.Benion,Willes,  Pleasant  d.  Hayton  v.  Benson,  14 

44.  East.  234. 

(c)  Doe  d.  Mitchell  v.  Levi,  M. 


AS  BETWEEN  LANDLORD  AND  TENANT.    131 

Where  a  tenant  from  year  to  year  had  under-let 
part  of  the  premises,  and  then  gave  up  to  his  land- 
lord the  part  remaining  in  his  own  possession,  not 
having  received  from  him  a  notice  to  quit,  or  sur- 
rendering such  part  in  the  name  of  the  whole,  it  was 
held  that  a  notice  to  quit,  from  the  original  landlord 
to  the  sub-lessee,  for  the  part  so  under-let,  was  irre- 
gular ;  and  that  the  sub-lessee  could  not  be  ejected 
without  a  regular  notice  from  his  immediate  land- 
lord. And  it  seems  that  if  the  tenant  had  surrendered 
such  part  in  the  name  of  the  whole,  it  would  not  have 
varied  the  case,  because  the  surrender  of  the  lessee 
would  not  destroy  any  interest,  which  a  stranger 
claiming  under  him  had  acquired  in  the  term  before 
such  surrender. 

When  the  premises  are  in  the  possession  of  two 
or  more,  as  joint  tenants,  or  tenants  in  common,  a 
written  notice  to  quit,  addressed  to  all,  and  served 
upon  one  only,  will  be  a  good  notice ;  (a)  so  also  a 
parol  notice,  given  to  one  co-tenant  only,  will  bind 
his  fellow,  (b) 

When  a  corporation  aggregate  is  the  tenant,  the 
notice  should  be  addressed  to  the  corporation,  and 
served  upon  its  officers,  and  a  notice  addressed  to  the 
officers  will  not  be  sufficient,  (c) 

With  respect  to  the  mode  of  serving  the  notice,  it 
is  in  all  cases  advisable  if  possible  to  deliver  it 

(a)   Doe   d.    Lord    Bradford    v.     Crick,  5  Esp.  196. 
Watkins,  7  East.  551.  (c)  Doerf.  Lord  Carlisle  v.  Wood- 

(fc)  Doe    d.    Lord    Macartney  v.     man,  8  East.  228. 


13*2  OF    THE    ACTION    OF    EJECTMENT 

to  the  tenant  personally;  but  if  personal  service 
cannot  be  effected,  the  service  will  be  sufficient  if  the 
notice  be  left  with  the  wife  or  servant  of  the  tenant  at 
his  usual  place  of  residence,  whether  upon  the  de- 
raised  premises,  or  elsewhere,  and  its  nature  and 
contents  explained  at  the  time,  (a)  But  a  mere 
leaving  of  the  notice  at  the  tenant's  house,  without 
proof  that  it  was  delivered  to  some  member  of  the 
household,  will  not  be  a  sufficient  service.  (6) 

Next  of  the  form  of  the  notice,  (c) 

When  the  landlord  intends  to  enforce  his  claim  to 
double  value  if  the  tenant  holds  over,(W)  it  is  necessary 
that  the  notice  to  quit  should  be  in  writing;  but  for  the 
purposes  of  an  ejectment  a  parol  notice  is  sufficient, 
unless  the  notice  is  required  to  be  in  writing  by  express 
agreement  between  the  parties,  (e)  It  is  however 
nevertheless  the  general  practice  to  give  written  no- 
tices; and  it  is  a  precaution  which  should  always, 
when  possible,  be  observed,  as  it  prevents  mistakes, 
and  renders  the  evidence  certain  and  correct.  It  is 
customary  also  to  address  the  notice  to  the  tenant  in 
possession;  and  it  is  perhaps  most  prudent  to  adhere 
to  this  form,  though,  if  proof  can  be  given  that  the 
notice  was  served  personally  upon  him,  it  is  thereby 


(a)  Jones  d.  Griffith  v.  Marsh,  4  (d)  4  G.  II.  c.  28,  s.  1. 

T.R.  464.    Doe  d.  Lord  Bradford  (e)    Legg   d.   Scott    v.    Benion, 

v.  Watkins,  7  East.  553.    Doe  d.  Willes,  43.    Timmins  v.  Rowlison, 

Neville  v.  Dunbar,  1  M.  &  M.  10.  1  Blk.  533.    Doe  d.  Lord  Macart- 

(6)  Doe  d.  Buross  v.  Lucas,  5  ney  v.  Crick,  5  Esp.  196.     Roe  d. 

Esp.  153.  Dean  of   Rochester   v-    Pierce,    2 

(c)  Appendix,  Nos.  1,  2,  3.  Camp.  96. 


AS    BETWEEN    LANDLORD    AND    TENANT.  133 

rendered  unnecessary,  (a)  And  where  a  notice  was 
addressed  to  the  tenant  by  a  wrong  Christian  name, 
and  the  tenant  did  not  return  the  notice,  or  object  to 
it,  and  there  was  no  tenant  of  the  name  mentioned  in 
the  notice,  it  was  ruled  at  Nisi  Prius  to  be  suffi- 
cient. (£) 

A  subscribing  witness  to  a  notice  to  quit  is  unne- 
cessary ;  and  it  is  prudent  not  to  have  one,  as  it 
may  occasion  difficulties  in  the  proof  of  the  service, 
and  cannot  be  of  the  slightest  advantage  to  the  land- 
lord, (c) 

Care  should  be  taken  that  the  words  of  a  notice 
are  clear  and  decisive,  without  ambiguity,  or  giving 
an  alternative  to  the  tenant;  for  although. the  courts 
will  reluctantly  listen  to  objections  of  this  nature,  yet 
if  the  notice  be  really  ambiguous,  or  optional,  it  will 
be  sufficient  to  render  it  invalid,  as  far  at  least  as  the 
action  of  ejectment  is  concerned. 

The  notice,  however,  will  not  be  invalid,  unless  it 
contain  a  real  and  bond  fide  option,  and  not  merely 
an  apparent  one;  for  if  it  appear  clearly,  from  the 
words  of  the  notice,  that  the  landlord  had  no  other 
end  in  view  than  that  of  turning  out  the  tenant,  it 
will  be  deemed  a  notice  sufficient  to  found  an  eject- 
ment upon,  notwithstanding  an  apparent  alternative. 
Thus  the  words,  "  I  desire  you  to  quit  the  possession 


(a)  Doee/.  Matthewsonu.  Wright-         (r)  Doe  d.  Sykes  ».  Duratord, 
man,  4  Esp.  5.  M.  &  S.  62. 

(b)  Doe  v.  Spiller,  6  Esp.  70. 


134        OF  THE  ACTION  OF  EJECTMENT 

at  Lady-day  next  of  the  premises,  &c.  in  your  posses- 
sion, or  /  shall  insist  upon  double  rent"  have  been 
held  to  contain  no  alternative  ;  because  the  landlord 
did  not  mean  to  offer  a  new  bargain  thereby,  but  only 
added  the  latter  words  as  an  emphatical  way  of  en- 
forcing the  notice,  and  showing  the  tenant  the  legal 
consequences  of  his  holding  over.  It  was  contended 
for  the  tenant,  that  this  could  not  be  the  construction 
of  the  notice,  because  the  statute  of  4  Geo.  II.  c.  28, 
does  not  give  double  the  rent,  but  double  the  value, 
on  holding  over ;  but  Lord  Mansfield,  C.  J.,  was  of 
opinion,  that  the  notice,  notwithstanding  this  variance, 
clearly  referred  to  the  statute.  It  seems,  however, 
that  if  the  words  had  been  "  or  else  that  you  agree  to 
pay  double  rent,"  the  notice  would  have  been  an  al- 
ternative one.  (a) 

Where  the  notice  was  to  quit  u  on  the  25th  day  of 
March,  or  6th  day  of  April  next  ensuing,"  (b)  and 
was  delivered  before  new  Michaelmas-day,^  it  was 
held  to  be  a  good  notice ;  as  being  intended  to  meet 
an  holding  commencing  either  at  new,  or  old  Lady- 
day,  and  not  to  give  an  alternative,  (c) 

Upon  the  same  principle,  the  court  will  not  in- 
validate a  notice,  on  account  of  an  ambiguity  in  the 
wording  of  it,  provided  the  intention  of  the  notice  be 
sufficiently  certain.  Thus,  an  impossible  year  has 

(a)  Doe  d.  Matthews  v.  Jackson,  in   the  case,   cannot   be    correct. 

Doug.  175.  See  also  Doe  d.  Spicer  v.  Lea,  11 

(6)   In  the  printed  report,  this  East.  312. 

date  is  stated  to  be  the  eighth  day  (c;  Doe  d.  Matthewson  v.  Wright- 

of  April,  which,  from  the  reasoning  man,  4  Esp.  5. 


AS   BETWEEN    LANDLORD    AND    TENANT.  135 

been  rejected.  The  notice  was  given  at  Michaelmas, 
1795,  to  quit  at  Lady-day  which  will  be  in  1795, and 
was  accompanied,  at  the  time  of  the  delivery  to  the 
tenant,  with  a  declaration,  that  as  he  would  not  agree 
to  the  terms  proposed  for  a  new  lease,  he  must  quit 
next  Lady-day,  and  under  these  circumstances  the 
notice  was  considered  to  be  sufficiently  certain :  (a) 
the  court  also  seemed  to  be  of  opinion,  that  the  no- 
tice would  have  been  good  without  the  accompanying 
declaration,  the  words  "  which  will  be,n  manifestly 
referring  to  the  then  next  Lady-day. — In  like  manner 
where  there  was  a  misdescription  of  the  premises  in 
the  notice,  which  could  lead  to  no  mistake,  the  house 
being  described  therein  as  the  Waterman's  Arms,  in- 
stead of  the  Bricklayer's  Arms,  no  sign  called  the 
Waterman's  Arms  being  in  the  parish,  the  notice 
was  deemed  a  valid  one.  (6) 

So  likewise  where  a  farm  was  leased  for  twenty- 
one  years  at  a  certain  rent,  consisting,  as  described  in 
the  lease,  of  the  Town  barton  and  its  several  parcels 
described  by  name,  at  one  portion  of  the  rent,  and 
the  Shippin  Barton  and  its  several  parcels  also  des- 
cribed by  name,  at  the  residue  of  the  rent,  with  a 
power  reserved  to  either  party  to  determine  the  lease 
at  the  end  of  fourteen  years  on  giving  a  certain 
notice ;  it  was  held  that  a  notice  given  by  the  land- 
lord to  the  tenant  to  quit  "  Town  Barton  8$c,  agree- 
ably to  the  terms  of  the  covenant  between  us,  &c." 
was  sufficient,  because  the  landlord  must  have  in- 
tended to  give  such  a  notice  to  quit  as  the  lease  re- 

(«)  Doe  d.  Duke  of  Bedford  v.         (6)  Doe  d.  Cox  v. ,  4  Esp. 

Kightley,  7T.R.63.  185. 


136         OF  THE  ACTION  OF  EJECTMENT 

served  to  him  the  liberty  of  giving,  and  not  a  void 
notice  to  quit  a  part  only,  and  so  the  notice  must  have 
been  understood  by  the  tenant,  (a) 

When  a  notice  is  given  to  quit  at  Michaelmas,  or 
Lady-day,  generally,  it  will  not  be  deemed  an  am- 
biguous notice,  but  considered  primd  facie,  as  ex- 
piring at  new  Michaelmas,  or  new  Lady-day,  open 
however  to  explanation,  that  old  Michaelmas,  or  old 
Lady-day,  was  intended.  And  if  it  appear,  that  the 
customary  holdings  where  the  lands  lie,  are  from  old 
Michaelmas,  or  Lady-day,  or  even  that  in  point  of 
fact  the  tenant  entered  at  old  Michaelmas,  or  Lady- 
day,  although  no  such  custom  exist,  such  a  notice 
will  be  binding  upon  him.  (£) 

The  notice  must  include  all  the  premises  held  under 
the  same  demise,  for  a  landlord  cannot  determine  the 
tenancy  as  to  part  of  the  things  demised,  and  conti- 
nue it  as  to  the  residue,  (a)  But  where  the  demise  was 
of  land  and  tithes,  and  the  notice  was  to  quit  posses- 
sion of  "  all  that  messuage,  tenement,  or  dwelling- 
house,  farm-lands,  and  premises,  with  the  appurte- 
nances which  you  rent  of  me,"  it  was  ruled  at  Nisi 
Prius  that  this  notice  was  sufficient  to  include  the 
tithes  ;  for  the  tithes  being  held  along  with  the  farm, 
the  notice  must  have  been  understood  by  both  parties 
to  apply  to  both,  (c) 

(a)  Doe  d.  Rodd  v.  Archer,  14  East.  d.    Hall   v.    Benson,  4   B.  &    A. 

245.  588. 

(6)  Furley  d.  Mayor  of  Canter-         (c)   Doe  d.    Morgan  v.  Church, 

bury  v.  Wood,  1  Esp.  197.     Doe  d.  3  Campb.  71. 
ilindeu.Vince,2  Campb.256.  Doe 


AS    BETWEEN    LANDLORD    AND    TENANT.  137 

Fourthly,  Of  the  time  when  the  notice  should 
expire. 

Before,  however,  we  enter  upon  this  subject,  it 
maybe  useful  to  observe,  that  certain  demises,  which 
have  the  appearance  of  tenancies  from  year  to  year 
only,  are  considered  by  the  courts  as  conveying  to 
the  tenant  an  indefeasible  interest  for  a  certain  time, 
though  afterwards  liable  to  be  determined  by  a  notice 
to  quit. 

Thus,  a  demise,  "  not  for  one  year  only,  but  from 
year  to  year,"  has  been  held  to  constitute  a  tenancy 
for  two  years  at  least,  and  not  determinable  by  a  no- 
tice to  quit  at  the  expiration  of  the  first  year,  (a)  The 
same  interpretation  has  also  been  given  to  a  demise 
u  for  a  year,  and  afterwards  from  year  to  year ;"  (6) 
though  where  the  demise  was  "  for  twelve  months 
certain,  and  six  months'  notice  afterwards,"  it  was 
held  at  Nisi  Prius,  that  the  tenancy  might  be  deter- 
mined at  the  expiration  of  the  first  twelve  months,  (c) 

Where  the  demise  was  to  hold  for  three,  six,  or  nine 
years  generally,  without  any  stipulation  as  to  the 
manner  in  which,  or  the  party  by  whom,  the  tenancy 
might  be  determined  at  the  end  of  the  third,  or  sixth 
year,  the  tenancy  was  held  to  be  determinable,  at  the 
two  earlier  periods,  at  the  will  of  the  tenant  only,  and 

(a)  Denn  d  Jacklin  v.  Cartright,  son  v.  Huddlestonc,  4  B.  &  C.  922. 
4  East.  31.  (c)    Thompson   v.  Maberley,    2 

(b)  Birch  v.  Wright,  1  T.  R.378.  Camp.  573. 
80,  and  the  cases  there  cited.  John- 


138        OF  THE  ACTION  OF  EJECTMENT 

by  a  regular  notice  to  quit ;  and  that,  as  against  the 
landlord,  the  demise  operated  as  an  indefeasible  one 
for  nine  years,  (a) 

If  the  produce  of  the  demised  lands  require  two 
years  to  come  to  perfection,  as  if  it  be  liquorice,  mad- 
der, &c.  a  general  holding  will,  it  seems,  enure  as  a 
tenancy  from  two  years  to  two  years,  and  cannot  be 
determined  by  a  notice  to  quit  at  the  end  of  the  first 
or  third  year.  (£)  And  it  was  observed  by  De  Grey, 
C.  J.  in  his  judgment,  that  it  might  deserve  to  be 
considered  whether,  if  required  by  the  nature  of 
the  soil,  or  the  course  of  husbandry,  a  general 
holding  will  not  always  enure  as  a  tenancy  for 
such~period,  as  may  be  necessary  to  carry  the 
land  through  its  regular  course  of  cultivation,  in- 
stead of  as  a  tenancy  from  year  to  year;  but  this 
doctrine  seems  very  doubtful. 

It  has  before  been  stated  generally,  that,  by  the 
common  law,  the  notice  necessary  to  be  given  to  a 
tenant,  is  a  notice  for  half  a  year,  expiring  at  the 
end  of  the  current  year  of  his  tenancy ;  and  that 
a  notice,  expiring  at  any  other  period,  will  not  be 
sufficient,  (c)  This  notice  is  frequently  spoken  of 
in  the  books,  as  a  six  months9  notice;  and  the 
distinction  seems  to  be,  that  when  the  tenancy  ex- 
pires at  any  of  the  usual  feasts,  as  Michaelmas, 
Christmas,  Lady-day,  or  Midsummer,  the  notice  must 


(a)  Denn  v.  Spurrier,  3  B.  &  P.         (b)  Roeu.  Lees,  Black.  1171. 
399.  (c)  Ante,  106. 


AS    BETWEEN    LANDLORD    AND    TENANT.  139 

be  given  prior  to  the  corresponding  feast  happening 
in  the  middle  of  the  year  of  the  tenancy ;  (a)  whilst, 
if  it  expire  at  any  other  period  of  the  year,  the 
notice  must  be  given  six  calendar  months  previous  to 
such  expiration. 

The  notice,  when  a  tenancy  commences  at  any  of 
the  usual  feasts,  may  be  given  to  quit  at  the  end  of 
half  a  year,  or  of  six  months  from  the  date  of  the  cor- 
responding feast  in  the  middle  of  the  year,  without 
stating  the  day  when  the  tenant  is  to  quit,  although 
the  intermediate  time  be  not  exactly  half  a  year,  or 
six  months,  from  feast  to  feast  being  the  usual  half 
yearly  computation.  And  indeed,  in  a  case  where  the 
notice  was  to  quit  "  on  or  about  the  expiration  of  six 
calendar  months  from  the  29th  of  September,  (the 
tenancy  commencing  March  25,)  the  Court  ruled  the 
word  calendar  to  be  surplusage,  and  held  the  notice 
good.(6) 

It  was  once  contended,  that  the  principle,  that  a 
notice  to  quit  must  expire  at  the  end  of  the  year  of  the 
tenancy,  did  not  extend  to  houses  as  well  as  lands ; 
and  that  in  cases  where  houses  alone  were  concerned, 


(a)   In  a  report  of  a  MS.  case  J.  Heath's  decision,  since  the  prin- 

in  Esp.  N.  P.  460,  it  is  said,  that  ciple  laid  down  in  the  report  is  in 

a  notice  given  on  the  30th  of  Sep-  opposition  to  every  authority  upon 

tember,  being    the   day  after   Mi-  the  subject.     Probably  the  tenant 

chaelmas-day,  to  quit  at  Lady-day  entered    at    old    Lady-day.     Vide 

following,  was  ruled  by  Heath,  J.  Right  v.  Darby.   1  T.  R.   159,  et 

to  be    a    sufficient  notice.    Some  ante,  136. 

particular  circumstances,  not  no-  (6)  Howard  v.  Wemsley,  6  Esp. 
ticed  by  the  reporter,  must,  it  is  53.  The  marginal  note  in  the  re- 
conceived,  have  occasioned  Mr.  port  of  this  case  is  incorrect. 


140  OF    THE    ACTION    OF    EJECTMENT 

six  months'  notice,  at  any  period  of  the  year,  would 
be  sufficient ;  but  the  Court  considered  that  the  same 
inconvenience  might  arise  in  the  one  case  as  in  the 
other,  since  the  value  of  houses  varies  considerably 
at  different  periods  of  the  year ;  and  therefore  held 
that  the  tenant  of  a  house  was  entitled  to  the  same 
privileges,  with  respect  to  the  notice  to  quit,  as  the 
occupier  of  land,  (a) 

But  this  rule  extends,  with  respect  to  houses,  to 
those  cases  only  in  which  the  tenancy  enures  as  a 
tenancy  from  year  to  year ;  and  the  notice  required 
will  refer  to  the  original  letting,  and  be  regulated  by 
the  local  custom  of  the  district  in  which  the  house  is 
situated,  whenever  it  happens  that  a  shorter  term 
than  twelve  months  is  intended  to  be  created  by  the 
letting,  although  no  particular  period  be  mentioned. 
This  chiefly  happens  in  the  case  of  lodgings;  and  the 
custom,  for  the  most  part,  requires  the  same  space  of 
time  for  the  notice,  as  the  period  for  which  the  lodg- 
ings were  originally  taken  ;  as  a  week's  notice  when 
taken  by  the  week,  a  month's  when  taken  by  the 
month,  and  so  forth,  (b) 

When,  also,  the  custom  of  the  country,  where  the 
premises  are  situated,  requires,  or  allows,  a  notice  for 
a  longer,  or  shorter,  period  than  half  a  year  (as  for 
instance,  the  custom  of  London,  by  which  a  tenant, 
under  the  yearly  rent  of  40*.  is  entitled  to  a  quarter's 

(a)  Right  v.  Darby,  1  T.  R.  159.  Esp.  94.  Doe  d.  Campbell  v.  Scott, 

Doe  d.  Brown  v.  Wilkinson,  Co.  6  Bing.  362.  Wilson  v.  Abbott,  3 

Litt.  270,  (6)  n.  1.  B.  &  C.  89. 

(6)  Doe  d.  Parry   v.   Hazell,    1 


AS    BETWEEN    LANDLORD    AND    TENANT.  141 

notice  only,  (a)  the  custom   will  be  admitted  by  the 
Courts  ;  (6)  but  such  custom  must  be  strictly  proved, 
and   the  witnesses  must  not  speak  to  opinion,  but 
facts,  (c)    The  parties  may  also  by  special  agreement, 
vary  the  time  of  the  duration  of  the  notice;  but  the 
notice  must,  notwithstanding,  where   the  letting  is 
from  year  to  year,  expire  with  the  year  of  the  tenancy, 
unless  the  agreement  also  provides  some  other  period 
for  its  expiration,  (d)     Where,  however,  the  terms 
of  the  agreement  are  not  intended  to  create  a  tenancy 
from  year  to  year,  determinable  at  a  quarter's  notice, 
but  to  empower  the  parties  to  put  an  end  to  the  te- 
nancy at  other  periods  of  the  year,  as  well  as  at  its 
termination,  the  Courts  will  give  effect  to  it.     Thus  a 
demise  for  one  year  only,  and  then  to  continue  tenant 
afterwards,  and  quit  at  a  quarter's  notice  ;  (d)  and  a 
demise,  where  it  was  agreed  "  that  the  tenant  was 
always  to  be  subject  to  quit  at  three  months'  notice,"  (e) 
have  been  held  to  be  demises  determinable  at  the  end, 
although  not  in  the  middle,  of  any  quarter.     But  a 
quarterly  reservation  of  rent  is  not  a  circumstance 
from  which  an  agreement  to  dispense  with  a  half- 
yearly  notice  is  to  be  inferred ;  although,  where  the 
landlord  accepted  in  such  case  a  three  months'  notice 
from  his  tenant,  without  expressing  either  his  assent 
to,  or  dissent  from,  such  notice,  it  was  ruled  at  Nisi 
Prius  to  be  presumptive  evidence  of  an  agreement 
that  three  months'  notice  should  be  sufficient,  (f) 


.   (d)  Tyley  v.  Seed,  Skin.  649.  1  Taunt.  155. 

(i)  Roe  d.  Brown  ».  Wilkinson,  (e)  Kemp  v.  Derrett,  3  Campb. 

Co.  Lilt.  270.  6.  n.  1.  511. 

(c)  Roe  d.  Henderson   v.  Char-  (f)  Shirley  v.  Newman,  1  Esp. 

nock,  Peake  N.  P.  C.  4.  266. 
(rf)  Doe  d.  Pitcher  v.  Donovan, 


142  OP    THE    ACTION    OF    EJECTMENT 

The  notice  may  be  given  to  quit  upon  a  particular 
day,  or  in  general  terms  at  the  end  and  expiration  of 
the  current  year  of  the  tenancy,  which  shall  expire 
next  after  the  end  of  one  half  year  from  the  service 
of  the  notice,  (a)  The  latter  form  should  always  be 
used  when  the  landlord  is  ignorant  of  the  period  when 
the  tenancy  commenced,  and  is  unable  to  serve  the 
tenant  personally ;  and  it  is  also  the  preferable  form, 
when  the  commencement  of  the  tenancy  is  known,  as 
it  provides  against  any  misapprehension  of  the  exact 
day  when  the  tenant  entered.  If  a  particular  day  be 
mentioned  in  the  notice,  it  must  be  the  day  of  the 
commencement,  and  not  of  the  conclusion  of  the  te- 
nancy ;  for  the  tenant  cannot  be  compelled  to  quit 
whilst  his  right  of  possession  continues,  and  this  right 
is  not  determined  until  the  year  is  fully  completed. 
It  must  also  be  the  exact  day  of  such  commencement. 
The  next,  or  any  subsequent  day,  will  not  be  suffi- 
cient. (£) 

The  time,  when  a  tenancy  from  year  to  year  com- 
mences and  expires,  takes  its  date,  in  the  absence  of 
all  other  circumstances,  from  the  time  when  the 
tenant  actually  enters  upon  the  demised  premises ;  (c) 
but  this  general  rule  may  be  varied,  both  as  to  the  com- 
mencement and  expiration  of  the  tenancy,  either  by 
express  agreement  or  legal  inference. 

When  a  person  is  let  into  possession  as  a  yearly 
tenant,  and  afterwards  takes  a  lease  of  the  premises, 


(a)  Appendix,  No.  1,  2,  3.     Doe     East.  312. 

d.  Phillips  v.  Butler,  2  Esp.  589.  (c)  Kemp  v.  Derrett,  3  Campb. 

(b)  Doe  d.  Spicer  v.   Lea,    11      511. 


AS    BETWEEN    LANDLORD    AND    TENANT.  143 

and  continues  to  hold  the  land  after  the  lease  has  ex- 
pired, the  time  of  the  expiration  of  the  tenancy, 
created  by  such  holding  over,  will  be  regulated  by  the 
terms  of  the  lease,  and  not  by  the  time  of  the  original 
entry.  Thus,  if  a  man  enters  at  Lady- day,  con- 
tinues tenant  for  one  or  more  years,  then  accepts  a 
lease  for  a  certain  term  expiring  at  Michaelmas,  and 
afterwards  holds  over  and  pays  rent,  the  notice  must 
be  given  to  quit  at  Michaelmas,  and  not  at  Lady- 
day,  (a)  And  the  rule  extends  to  the  assignees  of 
the  original  lessee,  and  their  assigns.  Whatever 
may  be  the  period  of  the  year  when  they  enter  upon 
the  demised  premises,  the  time  of  the  expiration  of 
their  tenancies  will  be  the  same  as  if  the  original 
lessee  had  continued  in  possession  ;  and  it  seems  im- 
material whether  they  come  into  possession  before  or 
after  the  expiration  of  the  lease.  (6) 

In  like  manner  when  a  remainder-man  receives  rent 
from  a  person  in  possession  under  a  lease,  granted  by 
the  tenant  for  life,  but  void  against  the  remainder- 
man, and  thereby  creates  a  tenancy  from  year  to  year, 
the  time  at  which  a  notice  to  quit,  given  by  such  re- 
mainder-man, must  expire,  will  be  regulated  by  the 
terms  of  the  lease,  and  not  by  the  time  of  the  death 
of  the  tenant  for  life,  (c)  As,  if  the  lease  be  for  a  cer- 
tain number  of  years,  to  commence  on  the  5th  of  April, 
and  the  tenant  for  life  die  on  the  30th  of  September, 


(a)  Doe  d.  Spicer  v.  Lea,  11  East.  (c)  Doe  d  Collins  v.  Weller,  7  T. 

312.  R.  478.  Right  d.  Flower  v.  Darby, 

(6)  Doe  d.  Castleton  v.  Samuel,  5  1  T.  R.  159.  Roe  d.  Jordan  v. 

Esp.  173.  Ward,  1  H.  Blk.  97.  ante  110. 


144        OF  THE  ACTION  OF  EJECTMENT 

the  proper  period  for  the  expiration  of  the  notice  will 
be  the  5th  of  April. 

The  principle  is  the  same  if  the  tenant  hold  under 
a  parol  lease,  void  by  the  statute  offrauds.  As,  where 
there  was  a  verbal  agreement  to  hold  for  seven  years, 
and  the  tenant  was  to  enter  at  Lady-day,  and  quit  at 
Candlemas,  it  was  held  that  the  lease,  although  void 
as  to  its  duration,  nevertheless  regulated  the  terms  of 
the  tenancy  in  other  respects,  and  that  a  notice  to  quit 
must  expire  at  Candlemas,  and  not  at  Lady-day,  (a) 

It  may  be  collected  from  these  cases,  that  if  there 
be  a  lease  for  years,  commencing  on  one  day,  and 
terminating  on  another,  as  for  example,  commencing 
at  Lady-day,  and  terminating  at  Michaelmas,  a  te- 
nancy created  by  the  landlord's  receipt  of  rent  after 
the  expiration  of  the  lease,  will  be  held  to  commence 
at  Michaelmas,  and  to  require  half-a-year's  notice 
from  Lady-day. 

No  new  tenancy  is  created  by  a  mere  agreement 
between  landlord  and  tenant  for  an  increase  of  rent 
in  the  middle  of  the  year  of  a  tenancy ;  but  a  notice 
to  quit  given  after  the  receipt  of  the  increased  rent, 
must  expire  at  the  time  when  the  tenant  originally 
entered.  (5) 

When  a  tenant  took  possession  in  the  middle  of  a 
quarter,  paid  rent  from  the  time  of  his  coming  in  up 
to  the  next  quarter-day,  (Christmas,)  and  then  paid  his 

(a)  Doe  d.  Rigge  v.  Bell,  5  T.  R.  (6)  Doe  d.  Bedford  v.  Kendrick, 

471.     Doe  d.  Peacock,  v.  Raftan,  6        Warwick,  Sum.  Ass.  1810.— MS. 
Esp.  4. 


AS   BETWEEN    LANDLORD    AND   TENANT.  145 

rent  half-yearly  at  Midsummer  and  Christmas,  it  was 
ruled  at  Nisi  Prius  that  the  tenancy  commenced  from 
Christmas,  and  not  from  the  preceding  half-quarter.  («) 
But  where  the  tenant  entered  in  the  middle  of  a 
quarter  upon  an  agreement  "  to  pay  rent  quarterly 
and  for  the  half- quarter,"  it  was  left  to  the  jury 
whether  the  party  was  tenant  from  the  quarter-day, 
prior  to  the  time  when  he  entered,  or  from  the  suc- 
ceeding quarter-day ;  and  under  the  direction  of  Lord 
Ellenborough,  C.  J.  the  jury  found  that  the  tenancy 
commenced  with  the  preceding  quarter.  (£) 

When  the  demise  is  by  parol,  and  in  general  terms 
to  hold  from  feast  to  feast,  as  from  Michaelmas  to 
Michaelmas,  it  will  be  a  holding  from  such  feast  ac- 
cording to  the  new  style ;  unless  by  the  custom  of  the 
country  where  the  lands  lie  (which  custom  may  be 
proved  by  parol  testimony)  such  tenancies  commence 
according  to  the  old  style,  (c)  If,  however,  the  de- 
mise be  by  deed  to  hold  from  any  particular  feast,  as 
"  from  the  feast  of  St.  Michael's"  8$c.  the  holding 
must  be  taken  to  be  according  to  the  new  style  not- 
withstanding the  custom ;  and  this  rule  prevails  al- 
though the  tenancy  be  created  by  a  holding  over  after 
the  expiration  of  the  lease,  and  the  original  entry  was 
according  to  the  old  style,  (d} 

Upon  the  same  principle  a  notice  to  quit  at  Michael- 
mas generally,  primd  facie  means  new  Michaelmas ; 

(a)  Doe  d.  Holcomb  v.  Johnson,  6  bury  v.  Wood,  1  Esp.  198.  Doe  d. 

Esp.  10.  Hall  v.  Benson,  4  B.  &  A.  588. 

(A)  Dee  d.  Wad-nore  ».  Selwyn,  (d)  Doe  d.  Spicer  v.  Lea,  1 1  East. 

H.  T.  47  Geo.  3.— MS.  812. 

(c)  Furley  d.  Mayor  of  Canter- 


146  OP   THE    ACTION    OP    EJECTMENT 

but  if  the  tenant  entered  at  old  Michaelmas,  it  will 
be  construed  to  mean  old  Michaelmas.  («) 

A.  tenant  sometimes  enters  upon  different  parts  of 
the  land,  at  different  periods  of  the  year,  although 
all  are  contained  in  one  demise ;  and  the  notice  to 
quit  must  then  be  given  with  reference  to  the  sub- 
stantial time  of  entry,  that  is  to  say,  with  reference 
to  the  time  of  entry  on  the  substantial  part  of  the 
premises  demised ;  no  notice  being  taken  of  the  time 
of  entry  on  the  other  parts,  which  are  auxiliaries 
only ;  though  the  tenant  will  be  obliged  to  quit  them 
at  the  respective  times  of  entry  thereon.  (6) 

This  substantial  time  of  entry,  it  has  been  con- 
tended, must  be  determined  by  the  times  when  the 
rent  is  payable ;  but  it  is  holden  to  depend,  either 
upon  the  general  custom  of  the  country  where  the 
lands  lie,  or  upon  the  relative  value  and  import- 
ance of  the  different  parts  of  the  demised  premises  ; 
and  of  these  facts  it  is  the  province  of  the  jury  to 
determine. 

As  few  decisions  are  to  be  found  on  these  points, 
it  will  be  useful  to  give  a  concise  statement  of  them. 

Where  the  landlord  agreed  to  let  the  defendant  a 
farm,  to  hold  the  arable  land  from  the  13th  of  February 
then  next,  the  pasture  from  the  5th  of  April,  and  the 
meadow  from  the  12th  of  May,  at  a  yearly  rent  pay- 
able at  old  Michaelmas  and  old  Lady-day,  the  first 

(a)  Doe  d.  Hinde  v.  Vince,    2         (b)  Doe  d.  Strickland  v.  Spence,  6 
Campb.  256.  East.  120. 


AS    BETWEEN    LANDLORD    AND    TENANT.  147 

payment  to  be  made  at  Michaelmas  then  next,  it  was 
held  to  be  a  tenancy  from  old  Lady-day  to  old  Lady- 
day  ;  because  the  custom  of  most  countries  would 
have  required  the  tenant  to  have  quitted  the  arable 
and  meadow  lands  on  the  13th  of  February,  and  12th 
of  May,  without  any  special  agreement,  and  a  notice 
to  quit  at  old  Lady-day  delivered  before  old  Michael- 
mas was  held  sufficient,  (a) 

So  also  upon  a  demise  of  the  same  nature,  namely, 
that  the  tenant  should  enter  upon  the  arable  land  at 
Candlemas,  and  the  house  and  other  premises  at 
Lady-day,  to  which  was  added  a  proviso,  that  the 
tenant  should  quit  the  premises  "  according  to  the 
times  of  entry  as  aforesaid,"  it  was  held  that 
the  proviso  made  no  alteration  in  the  tenancy,  so  as 
to  require  a  notice  six  months  before  Candlemas, 
because  it  merely  expressed  what  the  law  would 
otherwise  have  implied ;  that  the  substantial  time  of 
entry  was  at  Lady-day,  with  a  privilege  to  the  tenant 
on  the  one  hand  to  enter  on  the  arable  land  before 
that  period  for  the  purpose  of  preparing  it,  and  on 
the  other  hand  a  stipulation  by  him  when  he  quitted 
the  farm  to  allow  the  same  privilege  to  the  incoming 
tenant ;  and,  therefore,  that  a  notice  to  quit,  given 
six  months  previous  to  Lady-day,  although  less  than 
six  months  before  Candlemas,  was  sufficient.  (6) 

Where  the  premises  contained  in  the  demise  con- 


(a)  Doe  d.  Dagget  v.  Snowdon,  2         (1}  Doed.  Strickland  v.  Spence,  6 
Blk.  1224.  East.  120. 

1,2 


148        OF  THE  ACTION  OF  EJECTMENT 

sisted  of  dwelling-houses,  and  other  buildings,  used 
for  the  purpose  of  carrying  on  a  manufacture,,  a  few 
acres  of  meadow,  and  pasture  land,  and  bleaching- 
grounds,  together  with  all  water-courses,  &c.  and  the 
tenant  held  under  a  written  agreement  for  a  lease,  to 
commence  as  to  the  meadow  ground  from  25th  of 
December  then  last,  as  to  the  pasture  from  the  25th 
of  March  then  next,  and  as  to  the  houses,  mills,  and 
all  the  rest  of  the  premises,  from  the  1st  of  May,  the 
rent  payable  on  the  day  of  Pentecost  and  Martinmas, 
the  Court  held,  that  the  substantial  time  of  entry  was 
the  1st  of  May,  inasmuch  as  the  substantial  subject  of 
the  demise  was  the  house  and  buildings  for  the  pur- 
pose of  the  manufacture,  to  which  every  thing  else 
in  the  demise  was  merely  auxiliary,  (a) 

Where  a  house,  and  thirteen  acres  of  land,  were 
demised  for  eleven  years,  to  hold  the  lands  from  the 
2nd  of  February,  and  the  house  and  other  premises 
from  the  1st  of  May,  at  the  yearly  rent  of  24/.  pay- 
able at  Michaelmas  and  Lady-day,  the  jury  found  the 
land  to  be  the  principal  subject  of  the  demise;  and  the 
plaintiff  was  nonsuited  on  account  of  the  notice  to 
quit  not  having  been  given  six  months  previous  to  the 
2nd  of  February.  The  Court  was  afterwards  moved 
to  set  aside  the  nonsuit,  on  the  ground  that  the  house 
was  the  principal  part  of  the  demise  (being  situated 
near  a  borough) ;  or,  at  all  events,  that  the  relative 
value  and  importance  of  the  house  and  lands  were  so 
nearly  balanced,  it  was  immaterial  to  which  the  notice 
referred ;  but  the  court  refused  the  rule,  saying,  it 

(a)  Doe  d.  Lord  Bradford  v.  Watkins,  7  East.  551. 


AS   BETWEEN    LANDLORD    AND    TENANT.  149 

was  for  the  jury  to  decide  which  was  the  principal, 
and  which  the  accessory  part  of  the  demise,  (a) 

Lastly,  of  the  acts  by  which  a  regular  notice  to  quit 
may  be  waived. 

The  acceptance  of  rent,  accruing  subsequently  to 
the  expiration  of  the  notice,  is  the  most  usual  means 
by  which  a  waiver  of  it  is  occasioned  ;  but  the  accept- 
ance of  such  rent  is  not  of  itself  a  waiver  of  the  no- 
tice, but  matter  of  evidence  only  to  be  left  to  the  jury, 
to  determine  with  what  views,  and  under  what  cir- 
cumstances, the  rent  is  paid  and  received. 

If  the  money  be  taken  nomine  poente,  as  a  compen- 
sation for  the  trespass,  or  with  an  express  declaration 
that  the  notice  is  not  thereby  intended  to  be  waived, 
or  if  there  be  any  fraud  or  contrivance  on  the  part  of 
the  tenant  in  paying  it,  or  if  the  payment  be  accom- 
panied by  other  circumstances  which  may  induce  an 
opinion,  that  the  landlord  did  not  intend  to  con- 
tinue the  tenancy,  no  waiver  will  be  produced  by  the 
acceptance.  The  rent  must  be  paid  and  received  as 
rent,  that  is  to  say,  it  must  be  so  paid  and  received, 
as  to  satisfy  the  jury  of  an  intention  to  continue  the 
tenancy,  or  the  notice  will  remain  in  force.  Thus, 
where  the  landlord  brought  an  ejectment  immediately 
upon  the  expiration  of  the  notice,  and  after  the  ap- 
pearance of  the  tenant  in  the  action,  received  from 
him  a  quarter's  rent,  accruing  subsequently  to  the  day 
when  the  notice  expired,  but  nevertheless  continued 

(«)  Docrf.  Heapy  >:.  Howard,  11  East.  498. 


150        OF  THE  ACTION  OF  EJECTMENT 

his  action,  the  Court  were  of  opinion  (upon  a  motion 
for  a  new  trial,  after  a  verdict  for  the  defendant),  that 
from  the  continuance  of  the  suit  by  the  landlord,  after 
the  acceptance  of  the  rent,  a  fair  inference  might  be 
drawn,  that  he  did  not  mean  to  waive  his  notice ;  and 
as  that  point  had  not  been  left  for  the  consideration 
of  the  jury  (who  had  been  directed  at  the  trial  to  find 
for  the  defendant,  upon  the  simple  fact  of  the  quar- 
ter's rent  having  been  paid  and  received),  the  motion 
for  the  new  trial  was  granted,  (a)  So  also,  where  the 
rent  was  usually  paid  at  a  banker's,  and  the  banker, 
in  the  common  routine  of  business,  received  a  quar- 
ter's rent  from  the  tenant  after  the  expiration  of  the 
notice,  no  waiver  of  the  notice  was  thereby  created.  (6) 
But  where  the  notice  expired  at  Michaelmas,  1792, 
and  the  landlord  accepted  rent  due  at  Lady-day,  1793, 
and  did  not  bring  his  ejectment  until  after  such  ac- 
ceptance, nor  try  the  cause  until  1795,  the  jury  held 
that  the  notice  was  waived.  (<?) 

The  notice  may  also  be  waived  by  other  acts  of  the 
landlord ;  but  they  are  all  open  to  explanation,  and 
the  particular  act  will,  or  will  not,  be  a  waiver  of  the 
notice,  according  to  the  circumstances  which  attend 
it.  Thus,  a  second  notice  to  quit,  given  after  the 
expiration  of  the  first  notice,  but  also  after  the  com- 
mencement of  an  ejectment,  in  which  the  landlord 
continued  to  proceed,  notwithstanding  his  second  no- 
tice, was  holden  to  be  no  waiver  of  the  notice  origi- 
nally given ;  because  it  was  impossible  for  the  tenant 

(a)   Doe  d.    Cheny     v.    Batten,     Campb.  387. 

Cowp.  243.  (c)  Goodright  d.  Charter  v.  Cord- 

(/>)  Doe  d.  Ash    v.   Calvert,    2      went,  6  T.  R.  219. 


AS    BETWEEN    LANDLORD    AND    TENANT.  151 

to  suppose,  that  the  landlord  meant  to  waive  a  notice 
upon  the  foundation  of  which  he  was  proceeding  to 
turn  him  out  of  his  farm.  («)  Where  also,  after  the 
expiration  of  a  regular  notice  to  quit,  the  landlord 
gave  a  second  notice  in  these  words  : — "  I  do  hereby 
desire  you  to  quit  the  premises  which  you  now  hold 
of  me,  within  fourteen  days  from  this  date,  or  I  shall 
insist  upon  double  value,"  it  was  ruled  by  Lord  Ellen- 
borough,  C.  J.  at  Nisi  Prius,  that  the  second  notice 
could  not  be  intended,  or  understood  to  be  intended, 
as  a  waiver  of  the  first,  or  even  as  an  acknowledg- 
ment of  a  subsisting  tenancy  at  will,  having  for  its 
object  merely  the  recovery  of  double  value ;  and  the 
lessor  of  the  plaintiff  recovered  upon  a  demise, 
anterior  to  the  expiration  of  the  second  notice.  (£) 
So  also  where  a  notice  was  given  "  to  quit  the 
premises  which  you  hold  under  me,  your  term  there- 
in having  long  since  expired,"  the  Court  considered 
the  paper  as  a  mere  demand  of  possession,  and  not 
as  a  recognition  of  a  subsisting  tenancy,  (c) 

But  where  the  defendant  was  lessee  by  assign- 
ment of  certain  tithes,  under  an  agreement,  which 
only  operated  to  create  a  tenancy  from  year  to  year, 
and  the  impropriator,  ia  March,  1810,  (some  days 
after  the  assignment,)  gave  the  original  lessee  a  no- 
tice to  quit  at  the  Michaelmas  following,  and  after- 
wards, in  March  1811,  gave  the  assignee  a  notice 
to  quit  at  the  then  next  Michaelmas,  the  Court  were 

.     (a)  Doe  d.   Williams  v.   Hum-  and  3  Campb.  115. 

phreys,  2  East.  236 ;  et  vide,  Mes-  (r)  Doe  d.  Godsell  v.  Inglis,  3 

scnger  u.  Armstrong,  1  T.  R.  53.  Taunt.  54. 
(A)  Doe  d.  Digby  v.  Steel,  MS. 


152  •'*'/.  OP   THE    ACTION    OF    EJECTMENT 

clearly  of  opinion,  that  such  second  notice  was  a 
waiver  as  to  the  assignee  of  the  former  notice  given 
to  the  original  lessee.  And,  in  answer  to  an  argument 
in  support  of  the  efficacy  of  the  first  notice,  that  the 
original  tenancy  having  expired  at  Michaelmas,  1810, 
could  not  be  set  up  again  by  another  notice  to  the 
defendant  in  1811,  inasmuch  as  the  giving  of  a  person 
notice  to  quit  does  not  operate  to  create  a  tenancy  in 
him,  the  Court  observed,  "  It  does  not  necessarily  do 
so,  but  it  is  generally  considered  as  an  acknowledg- 
ment of  a  subsisting  tenancy ;  and  if  the  party  obeys 
the  notice,  how  can  he  be  deemed  a  trespasser  on 
account  of  a  prior  notice  to  another  person?  Nothing 
appears  to  show,  that  the  defendant  had  knowledge 
of  any  other  notice  to  quit  than  the  one  which  was 
served  upon  him  ;"  and  Bay  ley,  J.  added,  "  the  se- 
cond notice  gives  the  defendant  to  understand,  that 
if  he  quits  at  Michaelmas  1811,  he  will  not  be  deemed 
a  trespasser.  («) 

It  may  be  collected  from  this  case,  that  if  a  tenant, 
having  underlet  the  premises,  receive  from  his  land- 
lord a  notice  to  quit,  and  the  landlord  afterwards  give 
to  the  under-tenant  a  notice  to  quit,  expiring  at  a  sub- 
sequent period,  (6)  he  is  precluded  from  recovering 
in  an  ejectment  against  such  under-tenant,  upon  a  de- 
mise anterior  to  the  time  of  the  expiration  of  the  no- 
tice so  given  by  him  to  the  under-tenant.  And  if, 
after  the  expiration  of  a  regular  notice,  the  landlord 
should  give  to  the  same  tenant  a  second  regular  no- 
tice, in  the  usual  form,  *o  quit  at  the  termination  of  the 

(«)  Doe  d.  Brierly  v.  Palmer,  16          (i)  Ante,  129. 
East.  53. 


AS   BETWEEN    LANDLORD    AND    TENANT.  153 

next,  or  any  subsequent  year  of  the  tenancy,  without 
referring  therein  to  any  claim  for  double  value,  and 
without  having  taken  any  steps,  in  the  intermediate 
time,  to  enforce  the  first  notice,  it  may  be  doubted 
whether  such  second  notice  will  not  also  amount  to  a 
waiver  of  the  first. 

In  a  case  where  a  landlord,  after  the  delivery  of 
a  notice  to  quit,  promised  the  tenant  that  he  should 
not  be  turned  out  until  the  place  was  sold,  and  after 
the  sale  of  the  premises,  brought  an  ejectment  upon 
a  demise  anterior  to  the  time  of  the  sale  ;  it  was  con- 
tended that  the  permission  to  occupy  was  a  waiver  of 
the  antecedent  notice,  so  far  as  to  prevent  the  tenant 
from  being  considered  as  a  trespasser  by  relation  back 
to  the  time  when  the  notice  expired,  and  that  the  de- 
mise ought  to  have  been  laid  posterior  to  the  day 
when  the  contract  for  the  sale  was  made.  But  the 
Court  held,  that  the  permission  amounted  only  to  a 
declaration  on  the  part  of  the  landlord,  that  until  the 
sale  of  the  place,  he  would  suspend  the  exercise  of  his 
right  under  the  notice,  and  indulge  the  tenant  by 
permitting  him  to  remain  on  the  premises;  and  that 
it  was  not  intended  to  vacate  the  notice,  or  be  de- 
structive of  any  of  the  rights  which  the  landlord  had 
acquired  under  it.  (a) 

The  acceptance  by  the  landlord  of  the  double  value 
of  the  premises,  given  by  the  stat.  4  Geo.  II.  c.  28, 
when  the  tenant  wilfully  holds  over  after  the  expira- 
tion of  a  written  notice  to  quit,  or  the  bringing  of  an 

(a)  Whiteacre  d.  Boult  t;.  Symonds,  10  East.  13. 


154        OF  THE  ACTION  OP  EJECTMENT 

action  of  debt  for  the  same,  will  not  be  a  waiver  of 
the  notice ;  for  the  double  value  is  given  as  a  penalty 
for  the  trespass,  and  not  as  a  payment  between  land- 
lord and  tenant.  But  if,  after  the  expiration  of  a  no- 
tice to  quit  by  the  tenant,  the  landlord  accept  the 
double  rent  to  which  he  is  entitled  by  the  stat.  II  Geo. 
II.  c.  19,  it  seems  that  he  cannot  afterwards  proceed 
upon  the  notice  to  quit,  for  this  latter  statute  re- 
cognizes the  party  by  the  name  of  tenant,  which  the 
first  statute  does  not,  and  gives  a  right  of  distress  for 
the  double  rent,  which  is  a  remedy  applicable  only  to 
the  relation  of  landlord  and  tenant.  («) 

In  cases  where  the  act  of  the  landlord  cannot  be 
qualified,  but  must  of  necessity  be  taken  as  a  con- 
firmation of  the  tenancy,  as  if  he  distrain  for  rent  ac- 
cruing after  the  expiration  of  the  notice,  or  recover 
it  in  an  action  for  use  and  occupation,  the  notice  will 
of  course  be  waived  :  (b)  but  it  seems  that  a  pending 
action  for  such  use  and  occupation  will  not  be  suffi- 
cient to  invalidate  the  notice ;  for  the  landlord  may 
only  recover  to  the  time  of  the  expiration  of  the  no- 
tice, although  he  claim  rent  to  a  later  period,  (c)  And 
where  a  landlord,  after  a  verdict  in  ejectment  found- 
ed on  a  notice  to  quit,  distrained  for  rent  due  subse- 
quently to  the  expiration  of  the  notice,  and  the  party 
submitted  and  paid  the  rent,  it  was  held  to  be  no  ground 


(a)  Doe   d.  Cheney  v.    Batten,  (6)  Zouch  d.  Ward  v.  Willingale, 

Cowp.  245.  Timmins  v.  Rowlinson,  1  II.  Bl.  311. 

Burr.  1603.      Soulsby    v.  Neving,  (c)  Per  Buller,  J.  Birch  v.  Wright, 

9  East.    310.     Ryal    v.    Rich,  10  1  T.  R.  378 ;  et  vide  Roe  d.  Cronip- 

East.  48.  ton  v.  Miiishall,  S.  N.  P.  650. 


AS   BETWEEN   LANDLORD    AND    TENANT.  155 

for  staying  the  subsequent  proceedings  in  the  eject- 
ment; for  the  distress  was  wrongful,  and  might  have 
been  disputed  by  the  tenant,  (a) 

By  the  common  law,  if  a  landlord  distrained  after 
the  expiration  of  a  term,  though  for  rent  accruing 
during  its  continuance,  he  was  held  to  have  acknow- 
ledged a  subsequent  tenancy  ;  because,  by  the  com- 
mon law,  no  distress  could  be  made  after  the  deter- 
mination of  a  demise;  (b)  but  since  the  statute  8  Ann. 
c.  14.  s.  6.  &  7,  by  which  a  landlord  is  allowed  to 
distrain  within  six  calendar  months  after  the  deter- 
mination of  a  lease  for  life,  for  years,  or  at  will,  pro- 
vided his  own  title,  or  interest,  and  the  possession  of 
the  tenant,  from  whom  such  rent  became  due,  be  con- 
tinuing, a  distress  for  rent  accruing  at  the  time  of 
the  expiration  of  the  notice  to  quit,  if  made  within 
the  six  months,  will  be  no  waiver  thereof. 

Where  a  tenancy  from  year  to  year  subsists  be- 
tween the  parties,  an  ejectment  cannot  be  maintained 
on  a  parol  notice  to  quit  at  a  shorter  period  than 
half  a  year,  or  expiring  at  a  wrong  period  of  the 
tenancy,  notwithstanding  the  assent  of  the  tenant  to 
such  notice,  unless  such  assent  be  in  writing ;  be- 
cause the  notice  being  insufficient  in  itself  to  deter- 
mine the  tenant's  interest,  his  assent  can  only  make 
it  operative  as  a  surrender  of  the  term  ;  and  as  such 
surrender  is  not  by  operation  of  law,  but  an  actual 
surrender  by  agreement  between  the  parties,  it  is 


(a)  Doe  d.  Holmes  v.  Daiby,  8         (/>)  Pennant's  case,  3  Co.  64. 
Taunt.  538. 


156  OF    THE    ACTION    OF    EJECTMENT 

void  by  the  statute  of  frauds,  which  requires  that  such 
surrender  should  be  by  note  in  writing.  («) 

Next,  of  the  determination  of  a  tenancy  by  the 
act  of  the  tenant,  which  may  happen  in  two  several 
ways;  first,  by  a  notice  to  his  landlord  that  he  in- 
tends to  quit  the  possession ;  (6)  secondly,  by  the 
non-payment  of  rent,  or  breach  of  a  covenant  or  con- 
dition, (c) 

As  the  relation  of  landlord  and  tenant  is  mutual, 
the  principles  which  govern  the  first  of  these  modes 
have  been  discussed,  when  treating  of  the  notice  to 
quit  as  given  by  the  landlord;  and  it  therefore  now 
only  remains  to  inquire  into  the  rules  adopted  by 
the  Courts  in  the  two  latter  instances. 

The  right  to  give  a  notice  to  quit  is  given  by  the 
common  law,  and  is  necessarily  incidental  to  a  te- 
nancy from  year  to  year :  the  termination  of  a  tenancy 
by  the  non-payment  of  rent,  or  the  breach  of  a  cove- 
nant, or  condition,  can  only  rise  under  an  express 
agreement  between  the  parties,  and  seldom  occurs 
but  where  the  tenant  has  a  written  lease  for  a  de- 
terminate period. 


(a)  Doe  d.  Hudlestone  v.  John-  tion  may  perhaps  be  logically  in- 
son,  1  M'Leland  and  Yonge,  141.  correct;    but    as   the  proceedings 
Johnson  v,  Hudlestone,  4  B.  &  C.  differ  so  materially  in  cases  of  non- 
922,  payment  of  rent,  and  of  non-per- 
(6)  Appendix,  No.  4.  formance  of  other    covenants,   it 
(c)  As  the  non-payment  of  rent  was   thought   most    conducive  to 
is  in  fact  the  non-performance  of  a  perspicuity    to  name  them    sepa- 
covenant,  this  particular  enumera-  rately. 


AS    BETWEEN    LANDLORD    AND    TENANT.  157 

It  has  already  been  observed,  (a)  that  an  actual 
entry  upon  the  lands  was  formerly  necessary  before 
an  ejectment  could  be  maintained,  and  that  the  claim- 
ant's title  must  be  of  such  a  nature  as  to  render  his 
entry  lawful.  When,  therefore,  a  lease  for  years 
was  granted  to  the  tenant,  and  the  right  of  possession 
thereby  transferred  to  him,  the  landlord  could  not 
legally  enter  upon  the  land  during  the  continuance 
of  the  term;  and  was  consequently  without  remedy 
to  recover  back  his  possession  whilst  the  term  lasted, 
although  the  tenant  should  neglect  to  render  his  rent, 
or  otherwise  disregard  the  conditions  of  his  grant. 
When  terras  for  years  increased  in  length  and  value, 
this  became  a  serious  evil  to  landlords.  The  tenant 
might  be  so  indigent  as  to  render  an  action  of  cove- 
nant upon  the  original  lease  altogether  useless,  and 
the  premises  might  be  left  without  a  sufficient  distress 
to  countervail  an  arrear  of  rent.  Asa  means  of  ob- 
viating these  difficulties,  it  became  the  practice  for 
landlords  to  insert  in  their  leases  a  proviso  declaring 
the  lease  forfeited,  if  the  rent  remained  unpaid  for 
a  certain  time  after  it  became  due,  or  if  any  other 
particular  covenant  of  the  lease  were  broken  by  the 
lessee,  and  empowering  the  landlord  in  such  cases 
to  re-enter  upon,  and  re-occupy  his  lands. 

When  provisoes  of  this  nature  were  first  intro- 
duced, the  ancient  practice  prevailed,  and  of  course 
actual  entries  were  then  made  in  these  as  in  all  other 
cases  ;  and  it  seems  also  to  have  been  necessary,  for 
some  years  after  the  modern  practice  was  invented, 
and  the  sealing  of  leases  dispensed  with,  for  landlords 

(a)  Ante,  10. 


158  OP   THE    ACTION    OP    EJECTMENT 

to  make  actual  entries  upon  the  lands,  before  they 
could  take  advantage  by  ejectment  of  the  forfeiture 
of  a  lease.  This  useless  form  is  now  indeed  abo- 
lished ;  but  as  the  right  to  make  the  entry  is  still  ne- 
cessary, the  provisoes  are  continued  to  the  present 
day  in  their  ancient  terms,  (a) 

Having  thus  briefly  shown  the  principles  upon 
which  these  provisoes  are  founded,  we  shall  now  in- 
quire, first  as  to  the  covenants  deemed  by  our  law  to 
be  valid ;  secondly,  as  to  what  will  amount  to  the 
breach  of  any  particular  covenant,  and  herein  of  the 
proceedings  at  common  law,  and  under  the  statute 
4  Geo.  II.  c.  28,  on  a  clause  of  re-entry  for  non- 
payment of  rent ;  and,  thirdly,  as  to  the  modes  by 
which  conditions  may  be  dispensed  with,  or  for- 
feitures waived. 

The  landlord,  having  the  jus  disponendi,  may  an- 
nex whatever  conditions  he  pleases  to  his  grant,  pro- 
vided they  be  neither  contrary  to  the  laws  of  the 
kingdom,  nor  to  the  principles  of  reason,  or  public 
policy ;  and  it  is  by  these  general  maxims  we  must, 
be  guided,  when  called  upon  to  consider  the  validity 
of  any  particular  covenant  in  a  lease ;  for  only  one 
decided  case  upon  the  subject  is  to  be  found  in  our 
legal  authorities. 

The  lease  in  that  case  was  for  twenty-one  years, 


(a)  Little  v.  Heaton,  Salk.  258,      1  Vent.  248.    Wither  v.  Gibson,  3 
S.  C.  Ld.  Raym.  760.    Goodright     Keb.  218. 
d.  Hare  v.  Cator,  Doug.  477.  Anon. 


AS   BETWEEN    LANDLORD    AND    TENANT.  159 

and  the  proviso,  that  the  landlord  should  have  the 
power  to  re-enter,  if  the  tenant  committed  any  act  of 
bankruptcy  whereon  a  commission  should  issue.    This 
proviso  was  holden  valid,   upon  the  principle,  that 
as  it  is  reasonable  for  a  landlord  to  restrain  his  te- 
nant from  assigning,  so  it  is  equally  reasonable  for 
him  to  guard  against  such  an  event  as  bankruptcy, 
for  the  consequences  of  bankruptcy  would  be  an  as- 
signment ;  and  that  such  a  proviso  is  not  contrary  to 
any  express  law,  nor  against  reason  or  public  policy, 
for  it  is  a  proviso  which  cannot  injure  the  creditors, 
who  would  not  rely  on  the  possession  of  the  land  by 
the  occupier  without  a  knowledge  also  of  the  interest 
he  had  therein ;  and  to  discover  this  they  must  look 
into  the  lease  itself,  where  they  would  find  the  pro- 
viso that  the  tenant's  interest  would  be  forfeited  in 
case  of  bankruptcy.     Buller,  J.  in  his  judgment  on 
the  case,  made  a  distinction  between  leases  for  short 
terms,  and  very  long  leases,  with  respect  to  provisoes 
of  this  nature;  because  if  they  were  to  be  inserted  in 
very  long  leases,  it  would  be  tying  up  property  for  a 
considerable  length  of  time,  and  be  open  to  the  ob- 
jections of  creating  a  perpetuity ;  but  he  afterwards 
adds,  that  the  principal  ground  of  his  decision  was, 
because  it  was  a  stipulation  not  against  law,  nor  re- 
pugnant to  any  thing  stated  in  the  former  part  of  the 
lease,  but  merely  a  stipulation  against  the  act  of  the 
lessee  himself,  which  it  was  competent  for  the  lessor 
to  make,  (a) 

Secondly,  Of  what  will  amount  to  the  breach  of 

(«)  Roe  d.  Hunter  v.  Galliers,  2  T.  R.  133. 


160        OF  THE  ACTION  OF  EJECTMENT 

any  particular  covenant,  and  herein  of  the  proceed- 
ings at  common  law,  and  under  the  statute  4  Geo.  II. 
c.  28.  on  a  clause  of  re-entry  for  non-payment  of 
rent. 

The  power  generally  reserved  in  leases  to  landlords, 
to  re-enter  upon  the  premises,  in  case  the  rent  shall 
remain  in  arrear  for  a  certain  time  after  it  is  due,  is 
the  most  common  proviso  upon  which  ejectments  for 
forfeitures  for  breach  of  covenant  are  founded,  and 
as  several  provisions  are  made,  both  by  the  common 
and  statute  law,  for  regulating  ejectments  brought 
upon  such  provisoes,  a  separate  consideration  of  the 
mode  of  proceeding  upon  a  clause  of  re-entry  for 
rent  in  arrear,  seems  the  most  perspicuous  method  of 
treating  the  subject. 

At  the  time  when  provisoes  for  re-entry  were  first 
introduced,  it  was  unfortunately  the  practice  to  dis- 
figure the  principles  of  law  by  endless  subtilties  and 
distinctions ;  and  the  preliminaries  required  by  the 
common  law,  before  a  landlord  can  bring  an  eject- 
ment upon  a  clause  of  re-entry  for  non-payment  of 
rent,  are  so  numerous,  as  to  render  it  next  to  impos- 
sible for  any,  unversed  in  the  practice  of  the  Courts, 
to  take  advantage  of  a  proviso  of  this  nature.  "  First, 
a  demand  of  the  rent  must  be  made,  either  in  person, 
or  by  an  agent  properly  authorized,  (a)  Secondly, 
the  demand  must  be  of  the  precise  rent  due;  (b)  for 


(a)  Roe  d.  West  v.  Davies,  7  East,      rent  due,  by  the  non-payment  w/iere- 

363.  of  the    forfeiture  will  be  incwred  ; 

(6)  That  is  to  say,  of  the  precise     as  a  quarter's  rent,  if  the  rent  be 


AS    BETWEEN    LANDLORD    AND    TENANT.  161 

if  he  demand  a  penny  more,  or  less,  it  will  be  ill. 
Thirdly,  It  must  be  made  precisely  upon  the  day 
when  the  rent  is  due,  and  payable,  by  the  lease,  to  save 
the  forfeiture;  as,  where  the  proviso  is,  "  that 
if  the  rent  shall  be  behind  and  unpaid,  by  the 
space  of  thirty,  or  any  other  number  of  days  after 
the  day  of  payment,  it  shall  be  lawful  for  the  lessor 
to  re-enter,"  a  demand  must  be  made  on  the  thirtieth, 
or  other  last  day.  Fourthly,  It  must  be  made  a 
convenient  time  before  sun-set,  (a)  Fifthly,  It  must 
be  made  upon  the  land,  and  at  the  most  notorious 
place  of  it.  Therefore,  if  there  be  a  dwelling-house 
upon  the  land,  the  demand  must  be  at  the  front 
or  fore  door,  though  it  is  not  necessary  to  enter 
the  house,  notwithstanding  the  door  be  open ;  but 
if  the  tenant  meet  the  lessor  either  on  or  off  the  land, 
at  any  time  of  the  last  day  of  payment,  and  ten- 
der the  rent,  it  is  sufficient  to  save  a  forfeiture, 
for  the  law  leans  against  forfeitures.  Sixthly,  Unless 
a  place  is  appointed  where  the  rent  is  payable,  in 
which  case  the  demand  must  be  made  at  such  place. 
Seventhly,  A  demand  of  the  rent  must  be  made  in 
fact,  although  there  should  be  no  person  on  the  land 
ready  to  pay  it."  (b) 

Nor  are   these   the  only   vexatious  difficulties  to 

payable  quarterly,  half  a  year's  rent,  3  C.  &  P.  613. 
if  payable  half-yearly,  and  so  forth ;  (a)  According  to  the  case  of  Doe 
and  if  there  be  any  previous  arrears  d.  Wheeldon  v.  Paul,  3  C.  and  P. 
of   rent,  and  the  rent  demanded  613,  the  demand  ought  to  be  made 
include  such  arrears,  it  will  not  be  at  the  last  hour  of  the  day,  at  sun- 
sufficient  to  work  a  forfeiture.    Doe  set. 
d.  Wheeldon  v.  Paul,  M.S.  S.  C.  (6)  1  Saund.  287,  (n.  16.) 


M 


162  OF    THE    ACTION    OF    EJECTMENT 

which  a  landlord,  by  the  common  law,  was  subject. 
The  courts,  notwithstanding  his  compliance  with  all 
the  required  formalities,  would  set  aside  the  for- 
feiture, upon  the  payment  of  the  debt  and  costs,  at 
any  time  before  execution  executed ;  (a)  and  the 
tenant  might  at  any  time  apply  to  a  court  of  equity  for 
relief. 

Where  the  ejectment  is  brought  upon  a  clause  of 
re-entry,  and  less  than  six  months9  rent  is  due,  all 
these  evils  still  exist,  (unless  dispensed  with  by  the 
express  words  of  the  lease,)  (b]  but,  by  the  wise  pro- 
visions of  the  legislature,  the  landlord  is  now  relieved 
from  the  two  latter  inconveniences  in  all  cases  where 
six  months' rent  is  inarrear;  and  is  also  exempted 
from  an  observance  of  the  forms  and  niceties  of  the 
common  law,  if  there  be  likewise  no  sufficient  dis- 
tress upon  the  premises. 

By  the  4th  Geo.  II.  c.  28.  s.  2,  it  is  enacted,  that, 
(( in  all  cases  between  landlord  and  tenant,  as  often  as 
"  it  shall  happen  that  one  half-year's  rent  shall  be  in 
"  arrear,  and  the  landlord  or  lessor,  to  whom  the 
"  same  is  due,  hath  right  by  law  to  re-enter  for  the 

(«)  Roe  d.  West  v.  Davis,  7  East,  end  to  all  proceedings  by  re-entry 

363,  and  the  cases  there  cited.  at  common  law,  and  repeated  that 

(b)  Doe  d.   Harris  v.    Masters,  opinion  in    his  judgment  on    the 

2  B.  &  C.  490.    Wood,  B.  in  his  same  case  in  the  House  of  Lords 

judgment  in  the  Exchequer  Cham-  (2  B.  &  B.  554) ;  but  his  opinion 

ber,  in  the  case  of  Doe  d.  Lord  was   not   supported   by  any  other 

Jersey  v.  Smith,  1  B.  &  B.  178,  Judge ;    and  many  of  the  Judges 

intimated  a    strong    opinton  that  expressed  their  dissent  from  it. 
the  stat.  4.  Geo.  II.  c.  28,  put  an 


L    8 


AS    BETWEEN    LANDLORD    AND    TENANT.  163 

"  non-payment  thereof,  such  landlord  or  lessor  shall 
"  and  may,  without  any  formal  demand  or  re-entry, 
"  serve  a  declaration  in  ejectment  for  the  recovery 
"  of  the  demised  premises,  or  in  case  the  same  cannot 
"  be  legally  served,  or  no  tenant  be  in  actual  posses- 
ee  sion  of  the  premises,  may  then  affix  the  same  upon 
"  the  door  of  any  demised  messuage,  or  in  case  such 
"  ejectment  shall  not  be  for  the  recovery  of  any  mes- 
"  suage,  then  upon  some  notorious  place  of  the  lands, 
"  tenements  or  hereditaments,  comprised  in  such 
"  declaration  in  ejectment,  and  such  affixing  shall  be 
"  deemed  legal  service  thereof,  which  service  or  affix- 
"  ing  such  declaration  in  ejectment,  shall  stand  in  the 
<f  place  and  stead  of  a  demand  and  re-entry ;  and  in 
"  case  of  judgment  against  the  casual  ejector,  or 
"  nonsuit  for  not  confessing,  lease  entry,  and  ouster, 
"  it  shall  be  made  appear  to  the  court  where  the  said 
"  suit  is  depending,  by  affidavit,  or  be  proved  upon 
ee  the  trial,  in  case  the  defendant  appears,  that  half  a 
ff  year's  rent  was  due  before  the  said  declaration  was 
"  served,  and  that  no  sufficient  distress  was  to  be 
"  found  on  the  demised  premises,  countervailing  the 
ee  arrears  then  due,  and  that  the  lessor  or  lessors  in 
"  ejectment  had  power  to  re-enter ;  that  then,  and  in 
"  every  such  case,  the  lessor  or  lessors  in  ejectment 
"  shall  recover  judgment  and  execution,  in  the  same 
"  manner  as  if  the  rent  in  arrear  had  been  legally  de- 
"  manded,  and  a  re-entry  made ;  and  in  case  the  lessee 
"  or  lessees,  his,  her,  or  their  assignee  or  assignees, 
"  or  other  person  or  persons  claiming  or  deriving 
"  under  the  said  leases,  shall  permit  and  suffer  judg- 
"  ment  to  be  had  and  recovered  on  such  ejectment, 

M  2 


1G4  OF    THE    ACTION    OF    EJECTMENT 

"  and  execution  to  be  executed  thereon,  without  pay- 
"  ing  the  rent  and  arrears,  together  with  full  costs, 
<(  and  without  filing  any  bill  or  bills  for  relief  in 
"  equity,  within  six  calendar  months  after  such  exe- 
"  cution  executed;  then  such  lessee,  &cc.  and  all  other 
"  persons  claiming  and  deriving  under  the  said  lease, 
"  shall  be  barred  and  foreclosed  from  all  relief  or 
"  remedy  in  law  or  equity,  other  than  by  writ  of 
"  error,  for  reversal  of  such  judgment,  in  case  the 
<f  same  shall  be  erroneous,  and  the  said  landlord  or 
"  lessor  shall  from  thenceforth  hold  the  said  demised 
"  premises  discharged  from  such  lease ;  and  if  on 
"  such  ejectment  a  verdict  shall  pass  for  the  defendant, 
"  or  the  plaintiff  shall  be  nonsuited  therein,  except 
"  for  the  defendant's  not  confessing,  &c.  then  such 
"  defendant  shall  have  and  recover  his,  her,  or  their 
"  full  costs :  provided  always,  that  nothing  herein 
"  contained  shall  extend  to  bar  the  right  of  any  mort- 
"  gagee  or  mortgagees  of  such  lease,  or  any  part 
ec  thereof,  who  shall  not  be  in  possession,  so  as  such 
<c  mortgagee  or  mortgagees  shall,  within  six  calendar 
t(  months  after  such  judgment  obtained,  and  execu- 
tf  tion  executed,  pay  all  rent  in  arrear,  and  all  costs 
"  and  damages  sustained  by  such  lessor,  or  persons 
"  entitled  to  the  remainder  or  reversion  as  aforesaid, 
"  and  perform  all  the  covenants  and  agreements, 
"  which  on  the  part  and  behalf  of  the  first  lessee  or 
"  lessees  ought  to  be  performed." 

By  section  3,  "in  case  the  said  lessee  or  lessees,  his, 

'  her,  or  their  assignee  or  assignees,  or  other  person 

"  claiming   any  right,  title,  or  interest,  in  law   or 


AS  BETWEEN  LANDLORD  AND  TENANT.     165 

u  equity,  of,  in,  or  to  the  said  lease,  shall  within  the 
"  time  aforesaid,  file  one  or  more  bill  or  bills,  for  re- 
"  lief  in  any  court  of  equity,  such  person  or  persons 
"  shall  not  have  or  continue  any  injunction,  against 
"  the  proceedings  at  law  on  such  ejectment,  unless 
u  he,  she,  or  they  shall,  within  forty  days  next  after 
u  a  full  and  perfect  answer  shall  be  filed  by  the  lessor 
"  or  lessors  of  the  plaintiff  in  such  ejectment,  bring 
"  into  court,  and  lodge  with  the  proper  officer,  such 
u  sum  of  money  as  the  lessor  or  lessors  of  the  plaintiff 
"  in  the  said  ejectment  shall,  in  their  answers,  swear 
u  to  be  due  and  in  arrear,  over  and  above  all  just  al~ 
"  lowances,  and  also  the  costs  taxed  in  the  said  suit, 
"  there  to  remain  till  the  hearing  of  the  cause,  or  to 
"  be  paid  out  to  the  lessor  or  landlord  on  good  se- 
M  curity,  subject  to  the  decree  of  the  court;  and  in 
"  case  such  bill  or  bills  shall  be  filed  within  the  time 
"  aforesaid,  and  after  execution  is  executed,  the  lessor 
"  or  lessors  of  the  plaintiff  shall  be  accountable  only 
"  for  so  much  and  no  more  as  he,  she,  or  they  shall 
"  really  and  bond  fide,  without  fraud,  deceit,  or  wilful 
"  neglect,  make  of  the  demised  premises  from  the  time 
"  of  their  entering  into  the  actual  possession  thereof; 
"  and  if  what  shall  be  so  made  by  the  lessor  or  lessors 
"  of  the  plaintiff,  happen  to  be  less  than  the  rent  re- 
"  served  on  the  said  lease,  then  the  said  lessee  or 
"  lessees,  his,  her,  or  their  assignee  or  assignees, 
"  before  he,  she,  or  they  shall  be  restored  to  his,  her, 
"  or  their  possession  or  possessions,  shall  pay  such 
"  lessor  or  lessors,  or  landlord  or  landlords,  what  the 
u  money  so  by  them  made,  fell  short  of  the  reserved 
"  rent,  for  the  time  such  lessor  or  lessors  of  the  plain- 
"  tiffj  landlord  or  landlords,  held  the  said  lands." 


1G6  OF    THE    ACTION    OF    EJECTMENT 

Section  4.  "  Provided,  that  if  the  tenant  or  tenants, 
"  his,  her,  or  their  assignee  or  assignees,  shall  at  any 
"  time  before  the  trial  in  such  ejectment,  pay  or 
"  tender  to  the  lessor  or  landlord,  his  executors  or 
"  administrators,  or  his,  her,  or  their  attorney  in  that 
"  cause,  or  pay  into  the  court  where  the  same  cause 
"  is  depending,  all  the  rent  and  arrears,  together  with 
"  the  costs,  then  all  further  proceedings  on  the  said 
"  ejectment  shall  cease  and  be  discontinued ;  and  if 
"  such  lessee,  &c.  or  their  executors,  administrators, 
"  or  assigns,  shall,  upon  such  bill  filed  as  aforesaid,  be 
"  relieved  in  equity,  he,  she,  and  they,  shall  have,  hold, 
"  and  enjoy  the  demised  lands,  according  to  the  lease 
"  thereof  made,  without  any  new  lease  to  be  thereof 
"  made  to  him,  her,  or  them." 

Some  little  perplexity  attends  the  wording  of  these 
sections,  which  seem,  upon  the  first  reading,  to  extend 
only  to  cases  of  ejectment  brought  after  half  a  year's 
rent  due,  where  the  landlord  has  a  right  to  re-enter, 
and  where  no  sufficient  distress  is  to  be  found  upon 
the  premises  ;  but  the  statute  has  been  held  to  be 
more  general  in  its  operation,  and  its  provisions  (with 
the  exception  of  the  one,  which  dispenses  with  the 
formalities  required  by  the  common  law  upon  a  clause 
of  re-entry  for  non-payment  of  rent)  extend  to  all 
cases  where  there  is  six  months'  rent  in  arrear,  and  a 
right  of  re-entry  in  the  landlord,  (a) 

The  legislature  appear  to  have  four  different  objects 
in  view,  in  the  enactments  of  this  statute.  First,  to 

(a)  Roe  d.  West  v.  Davis,  7  East.  363. 


A3   BETWEEN    LANDLORD    AND    TENANT.  167 

abolish  the  idle  form  of  a  demand  of  rent,  where  no 
sufficient  distress  can  be  found  upon  the  premises  to 
answer  that  demand  ;  secondly,  in  cases  of  beneficial 
leases  which  may  have  been  mortgaged,  to  protect 
the  mortgagees  against  the  fraud  or  negligence  of 
their  mortgagors.  Thirdly,  to  render  the  possession 
of  the  landlord  secure,  after  he  has  recovered  the 
lands ;  and  fourthly,  to  take  from  the  court  the  discre- 
tionary power  they  formerly  exercised,  of  staying  the 
proceedings,  at  any  stage  of  them,  upon  payment  of 
the  rent  in  arrear,  and  costs.  The  first  of  these  ob- 
jects is  effected  by  permitting  the  landlord  to  bring 
his  ejectment  without  previously  demanding  the  rent : 
the  second,  by  permitting  a  mortgagee  not  in  posses- 
sion to  recover  back  the  premises  at  any  time  within 
six  months  after  execution  executed,  by  paying  all 
the  rent  in  arrear,  damages  and  costs  of  the  lessor, 
and  performing  all  the  covenants  of  the  lease  :  (a)  the 
third,  by  limiting  the  time  for  the  lessee  or  his  assigns 
to  make  an  application  to  a  court  of  equity  for  relief, 
to  six  calendar  months  after  execution  executed :  and 
the  fourth,  by  limiting  the  application  of  the  lessee  to 
stay  proceedings,  upon  payment  of  the  rent  in  arrear 

(a)  It  b  difficult  to  discover  from  whom  the  recovery  is  had,"  be- 

the  report  of  the  case  of  Doe  d.  cause  by  the  provisions  of  this  sta- 

Whitfield  v.  Roe,  3  Taunt.    402,  tute,  a  lessee  can  only  have  relief 

what  was  the  true  point  submitted  against  an    ejectment  for   a    for- 

to  the  judgment  of  the  court.    It  feiture,  upon  paying  the  arrears  of 

is  quite   clear  it   is  not  the  one  rent  and  costs  of  suit  into  court 

stated  in  the  margin,  viz.  "  that  the  before  trial,   whereas  a  mortgagee 

mortgagee  of  a  lease  has  the  same  may  obtain  relief  upon  paying  the 

title  to  relief,  against  an  ejectment  arrears,  costs,  and  damages,  at  any 

for  non-payment  of  rent,  and  upon  time  within  six  months  after  execu- 

the  same  terras,  as  the  lessee  against  tion  executed. 


168  OF   THE    ACTION    OF    EJECTMENT 

and  costs,  to  the  time  anterior  to  the  trial,  and  making 
it  compulsory  upon  the  court  to  grant  the  application 
when  properly  made,  (a) 

As  this  statute  dispenses  with  a  demand  for  rent  in 
those  cases  only  where  there  is  no  sufficient  distress 
upon  the  premises  as  well  as  six  months'  rent  in  ar- 
rear,  it  is  still  necessary  for  the  lessor  to  comply  with 
all  the  formalities  of  the  common  law,  before  he  can 
proceed  upon  a  clause  of  re-entry  for  non-payment  of 
rent,  if  a  sufficient  distress  can  be  found,  (b)  But  an 
insertion  in  the  proviso  of  the  lease  that  the  right  of 
re-entry  shall  accrue  upon  the  rent  being  lawfully  de- 
manded, will  not  render  a  demand  necessary  if  there 
be  no  sufficient  distress,  for  it  is  only  stating  in  ex- 
press words,  that  which  is  in  substance  contained, 
from  the  principles  of  the  common  law,  in  every  pro- 
viso of  this  nature,  (c) 

It  has  been  observed  that  the  provisions  of  this 
statute  (with  the  exception  of  the  one  relating  to  the 
demand  of  rent)  extend  to  all  cases  where  there  is 

(a)  Roe  d.  West  v.  Davis,  7  East.  C.  J.  differed  from  the  other  Judges 

363.  in  this  case,  he  being  of  opinion, 

(6)  Doe  d.  Forster  v.  Wandlass,  that  when  the  words  "  being  law- 

7T.  R.  117.  Vide  Smith  v.  Spooner,  fully  demanded"  were  inserted  in  a 

3  Taunt.  251.     If  the  reader  can  proviso  for  re-entry,  they  were  to 

comprehend  the  meaning  of  the  ex-  be  considered  as  a  stipulation  be- 

pressions  reported  to  have  been  used  tween  the   parties  that    the    rent 

by  the  Judges  in  pages  251,  252,  of  should    be,    in      fact,    demanded 

this  case,  he  will  be  more  fortunate  (though  not  with  the  strictness  of 

than  the  writer  of  this  note.  the  common  law)  before  ejectment 

(c)  Doe  d.  Schofield  v.  Alexander,  brought. 
2  M.  &  S.  525.     Lord  Ellenborough, 


AS   BETWEEN    LANDLORD    AND   TENANT.  169 

six  months'  rent  unpaid,  and  the  landlord  has  a  right 
to  re-enter.     This  point  has  only  been  decided  upon 
that  part  of  the  fourth  section  which  directs  all  pro- 
ceedings to  be  staid  upon  payment  of  the  rent  in 
arrear  and  costs  before  trial ;  but  the  principle  of  the 
decision  seems  to  apply  to  all  the  other  provisions  of 
the  statute  as  well  as  to  the  one  then  immediately  before 
the  Court. — It  wasobjected  in  that  case  that^e  statute 
only  applied  to  cases  of  ejectment  brought  after  half 
a  year's  rent  due,  where  no  sufficient  distress  was  to 
be  found  upon  the  premises,  but  Lord  Ellenborough, 
C.J.  says,  "the  statute  is  more  general  in  its  opera- 
tion ;  for  though  the  fourth  clause  has  the  word  suck 
(such  ejectment),  yet  the  second  clause  to  which  it 
refers  is  in  the  disjunctive ;  stating  first,  that  in  all 
cases  between  landlord  and  tenant,  when  half  a-year's 
rent  shall  be  in  arrear,  and  the  landlord  has  a  right  of 
re-entry  for  non-payment  thereof,  he  may  bring  eject- 
ment,  &c.,  or  in   case  the  same  cannot  be  legally 
served,  &c.  or  in  case  such  ejectment  shall  not  be  for 
the  recovery  of  any  messuage,  &c.,  and  in  case  of 
judgment  against  the  casual  ejector  or  nonsuit    for 
not  confessing  lease,  entry,  and  ouster,  it  shall  appear 
by  affidavit,  or  be  proved  upon  the  trial,  in  case  the 
defendant  appears,  that  half  a  year's  rent  was  due  be- 
fore the  declaration  served,  and  that  no  sufficient  dis- 
tress was  to  be  found  on  the  premises,  and  that  the 
lessor  had  power  to  re-enter;   then,  and  in  every 
such  case,  the  lessor  in  ejectment  shall  recover  judg- 
ment and  execution."  (a) 

» 

By  the  words  of  the  fourth  section  the  lessee  is  to 

(a)  Roe  d.  West  v.  Davis,  7  East.  363. 


170        OF  THE  ACTION  OF  EJECTMENT 

pay  the  arrears  of  rent,  &c.  into  Court  before  the 
trial;  and  no  provision  is  expressly  made  for  his  re- 
lief in  case  he  should  suffer  judgment  to  go  by  default 
against  the  casual  ejector ;  but  the  Courts  do  not  con- 
sider a  judgment  so  obtained  as  equivalent  to  a  trial, 
but  will  grant  relief  to  the  lessee  at  any  time  before 
execution  executed,  (a) 

The  provision  of  this  fourth  section  seems  also  to 
extend  only  to  cases  where  the  rent  and  costs  are  ten- 
dered to  the  lessor,  or  paid  into  Court,  after  action 
brought ;  yet  where  the  tenant  tendered  the  rent  in 
arrear  after  the  lessor  had  given  instructions  to  his 
attorney  to  commence  an  action,  but  before  the  de- 
claration had  been  delivered,  the  Court  set  aside  the 
proceedings  with  costs,  although  it  was  urged  by  the 
lessor  that  such  tender  was  merely  matter  of  defence 
at  the  trial.  (6) 

Where  the  ejectment  was  brought  on  a  clause  of 
re-entry  in  the  lease  for  not  repairing,  as  well  as 
for  rent  in  arrear  under  the  statute,  it  was  argued, 
on  a  motion  to  stay  proceedings  upon  payment  of  the 
rent,  that  the  case  was  not  within  the  act,  because  it 
was  not  an  ejectment  founded  singly  on  the  non-pay- 
ment of  rent ;  but  the  Court,  notwithstanding,  made 
the  rule  absolute,  with  liberty  for  the  lessor  to  pro- 
ceed on  any  other  title,  (c)  But  where  the  lessor 
has  recovered  possession  of  the  premises,  a  court  of 

(a)  Goodtitle  v.  Holdfast.  Stran.  Noright,  Black.  746. 
900.    Doe  d.  Harris  v.  Masters,  2         (c)   Pure  d.  Withers  v.  Sturdy, 

B.  &C.  490.  B.  N.  P.  97. 

(U)  Coodright  d.  Stephenson  v. 


AS  BETWEEN  LANDLORD  AND  TENANT.     171 

equity  will  not  grant  relief  under  the  second  section, 
if  such  recovery  was  by  reason  of  the  breach  of  other 
covenants  or  conditions,  as  well  as  by  the  non-pay- 
ment of  rent.  And  where  the  tenant  applied  to  the 
Court  of  Chancery  to  relieve  against  a  recovery  upon 
a  judgment  by  default  against  the  casual  ejector,  al- 
ledging  that  the  ejectment  was  brought  for  a  forfeiture 
incurred  by  non-payment  of  rent,  which  allegation  was 
contradicted  by  the  landlord,  who  stated  in  his  answer, 
that  the  tenant  had  also  broken  many  of  the  covenants 
of  the  lease,  for  which  the  landlord  had  a  right  to  re- 
enter  ;  the  Court  directed  an  issue  to  try,  whether  the 
landlord  knew  of  any  of  the  breaches  of  the  covenant, 
at  the  time  of  bringing  the  ejectment,  (a) 

Where  the  lessors  of  the  plaintiff  were  both  de- 
visees and  executors,  and  in  each  capacity  rent  was 
due  to  them,  the  defendant  moved  to  stay  proceed- 
ings on  payment  of  the  rent  due  to  the  lessors  of  the 
plaintiff  as  devisees,  they  not  being  entitled  to  bring 
ejectment  as  executors;  there  appeared  to  be  a  mutual 
debt  to  the  defendant  by  simple  contract,  and  the  de- 
fendant offered  to  go  into  the  whole  account,  taking 
in  both  demands,  as  devisees  and  executors,  having 
just  allowances,  which  the  lessors  of  the  plaintiff  re- 
fused :  the  rule  was  made  absolute  to  stay  proceed- 
ings on  payment  of  the  rent  due  to  the  lessors  as  de- 
visees, and  costs.  (6) 

The  proceedings  may  be  staid,  either  by  moving 
the  Court,  or  in  vacation  time  by  summons,  (c) 

(a)  Wadman  v.  Calcraft,  10  Vez.      stall,  Barn.  184. 
67.  (c)  2  Sell.  Prac.  127. 

(6)  Duckworth  v.  Tubley  v.  Tun- 


17'2  OF    THE    ACTION    OF    EJECTMENT 

In  moving  for  judgment  against  the  casual  ejector 
in  an  ejectment  brought  under  the  provisions  of  this 
statute,  the  Court  will  not  grant  a  rule  for  judgment 
without  an  affidavit,  (a)  pursuant  to  the  statute,  that 
half  a  year's  rent  was  in  arrear  before  declaration 
served,  that  the  lessor  of  the  plaintiff  had  a  right  to 
re-enter,  and  that  no  sufficient  distress  was  to  be 
found  upon  the  premises  countervailing  the  arrears  of 
rent  then  due :  and  the  affidavit  must  also  state  the 
service  of  the  declaration  in  ejectment  on  the  tenant  in 
possession,  or  that  the  premises  were  untenanted,  or 
that  the  tenant  could  not  be  legally  served,  or  as  the 
facts  may  be,  and  in  such  cases  that  a  copy  of  the  de- 
claration was  affixed  on  the  most  notorious  (stating 
what)  part  of  the  premises  (£) 

This  affidavit  is  of  course  only  necessary  upon 
moving  for  judgment  against  the  casual  ejector,  or 
after  a  nonsuit  at  the  trial  for  the  tenant's  not  con- 

(a)  In  the  case  of  Doe  d.  Hitch-  lord)  to  give  evidence  of  this  affi- 
ings  v.  Lewis,  (Burr.  614,)  it  ap-  davit.  The  Court  were  unanimously 
peared,  that  the  lessor  of  the  plain-  of  opinion,  that  from  the  lapse  of 
tiff  had  once  been  tenant  to  the  years  no  such  evidence  was  neces- 
defendant,  under  a  lease  for  a  term  sary ;  but  it  seems  to  have  been 
of  years,  of  which  some  were  yet  Lord  Mansfield's  opinion,  that  if 
to  come  :  and  had  been  ejected  by  the  lessor  of  the  plaintiff  in  the 
him  nearly  twenty  years  before,  by  second  action  had  proved,  that  in 
a  judgment  in  ejectment  against  point  of  fact  no  affidavit  had  been 
the  casual  ejector,  pursuant  to  the  made,  he  would  have  been  entitled 
statute  of  4  Geo.  II.  c.  28,  for  non-  to  recover.  But  qu&re,  if  the  pro- 
payment  of  rent.  The  title  set  up  per  method  in  such  case,  if  the 
by  the  lessor  in  this  last  action  was  judgment  be  recent,  is  not  to  move 
the  irregularity  of  the  proceedings  the  Court,  upon  affidavit  of  facts, 
in  the  first  ejectment,  from  the  to  set  aside  the  judgment  for  irregu- 
want  of  a  proper  affidavit  whereon  larity. 

to  ground  the  judgment ;  and  the  (6)  App.  No.  19.  Doe  d.  Sea- 
question  for  the  Court  to  decide  brook  v.  Roe,  4  B.  Moore,  350. 
was,  whether  it  was  necessary  for  Doe  d.  Evans  v.  Roe,  4  B.  Moore, 
the  defendant  (the  original  land-  469. 


AS   BETWEEN    LANDLORD    AND   TENANT.  173 

fessing  lease,  entry,  and  ouster ;  but  if  the  tenant  ap- 
pear, and  the  ejectment  come  to  trial,  the  matters 
contained  in  the  above  affidavit  must  be  proved,  (a) 

When  a  forfeiture  has  accrued  upon  a  clause  of  re- 
entry for  rent  in  arrear,  such  forfeiture  will  be 
waived  if  the  landlord  do  any  act  after  the  for- 
feiture, which  amounts  to  an  acknowledgment  of  a 
subsisting  tenancy ;  as  if  he  receives  rent  due  at  a 
subsequent  quarter,  or  distrain  for  that  in  respect  of 
which  the  forfeiture  accrued,  or  receive  the  same  and 
give  a  receipt  for  it  as  for  so  much  rent,  or  in  which 
he  calls  the  party  his  tenant.  It  seems,  however,  ac- 
cording to  the  old  authorities,  that  in  the  case  of  a 
lease  for  years,  the  bare  acceptance  by  the  lessor  at  a 
subsequent  day  of  the  rent,  in  respect  of  which  the 
forfeiture  accrued,  although  before  ejectment  brought, 
will  not  of  itself,  unless  accompanied  with  circum- 
stances which  show  an  intention  to  continue  the  te- 
nancy, bar  him  of  his  right  to  re-enter,  because  the 
rent  is  a  duty  due  to  him,  and  as  well  before  as  after 
re-entry,  he  may  have  an  action  of  debt  for  the  same 
on  the  contract  between  the  lessor  and  lessee;  but 
that  in  the  case  of  a  lease  for  life,  the  mere  accept- 
ance of  such  rent  will  be  sufficient  to  affirm  the  lease, 
as  the  lessor  could  not  receive  it  as  due  upon  any 
contract,  but  must  receive  it  as  his  rent ;  for  when  he 
accepted  the  rent  he  could  not  have  an  action  of  debt 
for  it,  but  his  remedy  was  by  assize,  if  he  had  seizin, 
or  distress.  (6) 

(a)  Doe  d.  Ilitchings  v.  Lewis,  S.  C.  1  Leon.  262.  Pennant's  case, 
Burr.  614.  20.  3  Co.  64.  et  vide  Doe.  d.  Cheney  v. 

(6)  Green's  case,   Cro.  Eliz.    3.      Batten,  Cowp,  243. 


174        OP  THE  ACTION  OF  EJECTMENT 

Where  an  ejectment  was  brought  upon  a  proviso 
of  re-entry  for  non-payment  of  rent,  and  the  lessor 
also  commenced  an  action  of  covenant  for  rent,  ac- 
cruing subsequently  to  the  day  of  the  demise  in  the 
ejectment,  and  the  tenant  paid  into  Court  the  rent 
demanded  in  the  action  of  covenant,  the  forfeiture 
was  holden  to  be  waived ;  but  it  seems  doubtful 
whether  the  commencement  of  the  action  of  covenant 
was  of  itself  sufficient  to  waive  the  forfeiture,  (a) 

A  right  of  re-entry  for  non-payment  of  rent  under 
the  stat.  4  Geo.  II.  c.  28,  will  not  be  waived  by 
taking  an  insufficient  distress  for  that  rent,  nor  by 
continuing  in  possession  under  such  distress  after  the 
expiration  of  the  last  day  for  the  payment  of  the 
rent,  (b)  But  the  mere  act  of  taking  a  distress,  al- 
though an  insufficient  one,  is  waiver  of  a  right  of  re- 
entry at  common  law.  (c) 

(a)  Doe  d.  Crampton  v.  Minshul,      principle  to  cases  under  the  stat.  4. 

B.  N.  P.  96.  S.  N.  P.  650.  Geo.  II.  c.  28.  The  note  is  subjoined. 

(6)  Doe  d.  Taylor  v.  Johnson,  1 

c     ,  Brewer  d.   Lord    Onslow    v.  Ea- 

Stark.  411. 

(e)  Brewer  d.  Lord    Onslow  v. 

-n.TrT.-n         m  An  ejectment  may  be  supported  on 

Eaton,  K.  B.  Easter  Term,  1773,  MS. 

4  Geo.  II.  c.  28.  though  the  land- 

This  case,  as   cited  in  Goodnght  . 

,    _,,  _,     ,  „.  °  lord,  subsequently  to    the  time 

d.  Charter  v.  Cord  went,  6  T.  E.  .. 

of  the  demise,  distrained  for  rent 
220,   seems  to  warrant  a  conclu- 

,        ..         _  „  accruing  previously  to  that,  for  the 

sion,  that  the  taking  of  an  insuffi- 

,.  ...  .          .  ,  non-payment  of  which  the  eject- 

cient  distress  will  not  waive  a  right 

-  ment  was  brought. 

or    re-entry  at    common    law.    I 

have  been  favoured  by  Mr.  Jardine  Ejectment    under     4   Geo.    II. 

with   a   MS.  report  of   the  case,  c.  28,  for    non-payment   of  rent, 

taken  from  the  note-book  of  Gibbs  £200.,  was  in  arrear  for  two  years' 

C.  J.  (the  marginal  note  being  in  rent  due  at  Michaelmas  1782;  on 
his  hand-writing,  and  the  body  of  the  3d  of  December,  Lord  Onslow 
the  note  in  the  hand-writing  of  Mr.  distrained,  and  could  levy  but  351. 
Justice  Dampier,)  which  limits  the  For  this  distress  a  replevin  was  still 


AS    BETWEEN    LANDLORD    AND    TENANT. 


175 


With  respect  to  provisoes  for  re-entry  upon  the 
breach  of  other  conditions,  no  general  principle  can 
be  laid  down,  excepting  that  which  arises  out  of  the 


subsisting ;  the  declaration  in  eject- 
ment was  delivered  in  January,  and 
the  demise  laid  on  October  3d,  1782. 
The  plaintiff  had  a  verdict  before 
Mr.  J.  Ashurst,  and  liberty  was  re- 
served for  the  defendant  to  move 
for  a  nonsuit  if  this  Court  should 
admit  of  an  objection  which  was 
now  pursued;  viz.  that  the  land- 
lord having  taken  a  distress  subse- 
quently to  the  time  of  the  demise,  had 
thereby  waived  his  right  of  entry. 

Erskine  for  Plaintiff;  Morgan  for 
Defendant. 

Lord  Mansfield,C.  J.  At  common 
law,  if  a  distress  had  been  taken  after 
anejectment  brought  for  a  forfeiture, 
the  Court  would  lay  hold  of  this  or 
any  other  grounds  they  could,  to  say 
the  landlord  had  waived  his  forfeit- 
ure, because  forfeitures  are  reckon- 
ed odious  in  law.  It  is  like  the  re- 
ceipt of  rent  after  the  demise,  about 
which  there  was  so  long  a  puzzle.  That 
is  now  finally  settled  to  benoobjection 
to  an  ejectment;  it  is  receiving  what 
the  landlord  might  have  recovered  in 
an  action  for  mesne  profits.  Here  the 
party  has  a  right  of  re-entry  ;  then, 
by  the  statute,  he  has  a  right  to  re- 
cover in  a  particular  way,  if  there 
is  not  a  sufficient  distress.  He  has 
distrained  since:  that  is  no  pre- 
sumption of  the  waiver  of  his  right 
of  entry,  because  it  is  consistent 
with  it ;  it  seems  a  necessary  step 
to  ascertain  the  sufficiency  of  the 
distress. 


Wittes  J.  At  common  law  the 
landlord  had  two  remedies,  re-en- 
try and  distress.  The  resorting  to 
the  latter  would  have  been  a  waiver 
of  the  re-entry ;  but  if  the  distress 
be  not  sufficient,  the  statute  restores 
that  remedy,  when,  by  the  common 
law,  the  waiver  had  taken  it  away. 
— Rule  discharged. 


It  may  be  useful  to  notice  in  this 
place  a  provision  of  the  legislature 
in  one  particular  case  of  rent  in 
arrear,  although  it  does  not  strictly 
belong  to  a  treatise  on  ejectment. 
By  the  statute  11  Geo.  II.  c.  19.  s. 
16,  (extended  by  57  Geo.  III.  c.  52, 
to  cases  where  half  a  year's  rent 
shall  be  in  arrear,)  after  reciting, 
that  landlords  are  often  great  suf- 
ferers by  tenants  running  away  in 
arrear,  and  not  only  suffering  the 
demised  premises  to  be  uncultivat- 
ed, without  any  distress  thereon, 
whereby  the  landlords  or  lessors 
might  be  satisfied  for  the  rent  in  ar- 
rear; but  also  refusing  to  deliver  up 
the  possession  of  the  demised  pre- 
mises, whereby  the  landlords  are 
put  to  the  expense  and  delay  of  re- 
covering them  in  ejectment;  it  is 
enacted,  "  that  if  any  tenant  hold- 
"  ing  any  lands,  tenements,  or  he- 
"  reditaments,  at  a  rack  rent,  or 
"  where  the  rent  reserved  shall  be 
"  full  three-fourths  of  the  yearly  va- 
"  lue  of  the  demised  premises,  who 
"  shall  be  in  arrear  for  one  year's 


176 


OP    THE    ACTION    OF    EJECTMENT 


maxim  of  our  law,  that  every  doubtful  grant  shall  be 
construed  in  favour  of  the  grantee  ;  namely,  that  the 
breach  complained  of  must  come  within  the  very 
letter  of  the  covenant,  or  the  lease  will  not  be  for- 
feited ;  and  the  clearest  method  of  showing  the  appli- 


"  rent,  shall  desert  the  demised 
"  premises,  and  leave  the  same  un- 
"  cultivated  or  unoccupied,  so  as 
"  no  sufficient  distress  can  be  had 
"  to  countervail  the  arrears  of  rent; 
"  it  shall  and  maybe  lawful,  to  and 
"  for  two  or  more  justices  of  the 
"  peace  of  the  county,  riding,  di- 
"  vision,  or  place,  (having  no  in- 
"  terest  in  the  demised  premises,)  at 
"  the  request  of  the  lessor  or  land- 
"  lord,  lessors  or  landlords,  or  his, 
"  her,  or  their  bailiff  or  receiver,  to 
"  go  upon  and  view  the  same,  and 
"  to  affix,  or  cause  to  be  affixed,  on 
"  the  most  notorious  part  of  the  pre- 
"  mises,  notice  in  writing,  what  day 
"  (at  the  distance  of  fourteen  days 
"  at  least,)  they  will  return  to  take 
'*  a  second  view  thereof;  and  if 
"  upon  such  second  view,  the 
"  tenant,  or  some  person  on  his  or 
"  her  behalf,  shall  not  appear,  and 
"  pay  the  rent  in  arrear,  or  there 
'*  shall  not  be  sufficient  distress 
"  upon  the  premises;  then  the  said 
"  justices  may  put  the  landlord  or 
"  landlords,  lessor  or  lessors,  into 
"  the  possession  of  the  said  demised 
"  premises,  and  the  lease  thereof 
"  to  such  tenant,  as  to  any  demise 
"  therein  contained  only,  shall  from 
"  thenceforth  become  void." 

"  Sect    17.     "  Provided   alwavs 


"  that  such  proceedings  of  the  said 
"  justices  shall  be  examinable  in  a 
"  summary  way,  by  the  next  justice 
"  or  justices  of  assize  of  the  re- 
"  spective  counties  in  which  such 
"  lands  or  premises  lie;  and  if  they 
"  lie  in  the  city  of  London,  or 
"  county  of  Middlesex,  by  the 
"  Judges  of  the  courts  of  King's 
"  Bench  or  Common  Pleas ;  and 
"  if  in  the  counties  palatine  of 
"  Chester,  Lancaster,  or  Durham, 
"  then  before  the  Judges  thereof; 
"  and  if  in  Wales,  then  before  the 
"  courts  of  grand  session  respec- 
'*  tively ;  who  are  hereby  respec- 
"  tively  empowered  to  order  re- 
"  stitution  to  be  made  to  such 
"  tenant,  together  with  his  or  her 
"  expenses  and  costs,  to  be  paid  by 
"  the  lessor  or  landlord,  lessors  or 
"  landlords,  if  they  shall  see  cause 
"  for  the  same;  and  in  case  they 
"  shall  affirm  the  act  of  the  said 
"justices,  to  award  costs,  not  ex- 
*'  ceeding  five  pounds,  for  the  fri- 
"  volous  appeal."  The  provisions 
of  this  statute,  however,  like  those 
of4Geo.  II.  c.  28,  are  holden  to 
extend  only  to  cases  where  the 
landlord  has  a  right  of  re-entry  re- 
served to  him  by  the  demise. — 
Wood,  L.&T.  523. 


AS    BETWEEN    LANDLORD    AND    TENANT.  177 

cation  of  this   principle  will  be  by  giving   a  short 
digest  of  the  cases  upon  the  subject. 

Where  the  lessee  covenanted  with  the  lessor  not  to 
assign  his  term  without  the  lessor's  consent,  and 
afterwards  devised  his  term  without  such  consent,  it 
was  holden  not  to  amount  to  a  forfeiture,  for  a  devise 
is  not  a  lease,  (a) 

Where  the  lessee  covenanted  not  to  demise,  assign, 
transfer,  or  set  over,  or  otherwise  do  or  put  away  the 
indenture  of  demise,  or  the  premises  thereby  demised, 
or  any  part  thereof,  to  any  person  or  persons  what- 
soever, and  afterwards  made  an  under-lease  of  the 
premises,  it  was  held  not  to  be  a  breach  of  the  cove- 
nant, or  a  forfeiture  of  term,  for  an  under-lease  is 
not  an  assignment.  And  it  was  said  by  the  Court,  in 
answer  to  an  argument,  that  although  an  under-lease 
did  not  amount  to  an  assignment,  yet  that  it  was  a 
transferring,  setting  over,  doing,  or  putting  away 
with  the  premises,  that  the  Courts  have  always  looked 
nearly  into  these  conditions,  covenants,  and  provisoes, 
that  the  devising  a  term  was  a  doing  or  putting  it 
away,  so  being  in  debt  by  confessing  a  judgment, 
and  having  the  term  taken  in  execution  was  the  like, 
but  that  none  of  these  amounted  to  an  assignment,  or 
to  a  breach  of  the  covenant,  or  condition.  (6) 

It  seems  to  have  been  once  holden,  that  if  a  lessee 
for  years  grant  the  lands  to  another  for  the  whole 
term  he  has  therein,  but  reserve  the  rent  payable  to 

(a)  Fox  ».  Swan,  Sty.  482.  3  Wils.  234. 

(6)  Crusoe  d.  Blencowe  t>.  Bugby, 

N 


178        OF  THE  ACTION  OF  EJECTMENT 

himself,  and  not  to  the  original  lessor,  it  will  be  a 
lease,  and  not  an  assignment,  notwithstanding  the 
want  of  a  reversion  in  the  party  so  granting;  but 
this  doctrine,  if  the  decision  were  as  reported,  has 
since  been  overruled,  (a) 

Where  the  lease  contained  a  proviso,  that  the 
lessee  should  not  set,  let,  or  assign  over,  the  whole, 
or  any  part,  of  the  premises,  without  leave  in  writ- 
ing, on  pain  of  forfeiting  the  lease,  it  was  held  that 
the  lessee  could  not  under-let  without  incurring  a  for- 
feiture ;  because  the  word  over  was  annexed  only  to 
the  word  assign,  a'nd  therefore  the  condition  was 
broken  if  the  lessee  let  the  premises,  or  any  part  of 
them,  for  any  part  of  the  time.  (#)  And  where  the 
proviso  was  not  to  assign,  or  otherwise  part  with  the 
premises,  for  the  whole,  or  any  part,  of  the  term,  the 
proviso  was  held  to  be  broken  by  an  under-lease,  as 
well  as  by  an  assignment,  (c) 

Where  the  covenant,  was  not  to  set,  let,  assign, 
transfer,  set  over,  or  otherwise  part  with,  the  pre- 
mises thereby  demised,  or  that  present  indenture  of 
lease,  a  deposit  of  the  indenture  with   a  creditor, 
as  a  receipt  for  money  advanced,  was  held  not  to 

(«)  Poultney   v.  Holmes,  Stran.  year,  and  not  as  a  tenancy  for  the 

405.     Palmer  v.  Edwards,    Doug,  residue  of  the  term.     Vide  Doe  d. 

187,  in  notis.    It  seems  from  these  iligge  v.  Bell,  5  T.  R.  471.  Clayton 

cases,  that  a  parol  assignment  of  v.  Blakey,  8  T.  R.  3. 

the  whole  term,  which  is  void  by  (6)  Roe  d.  Gregson  v.  Harrison, 

the  statute  of  frauds,  will  be  good  2  T.  R.  425. 

as  an  under-lease;  but  quare  if  the  (c)  Doe  d.  Holland  v.  Worseley,  1 

tenancy  thereby  created  does  not  Campb.  20. 
enure  as  a  tenancy   from  year    to 


AS    BETWEEN    LANDLORD    AND    TENANT.  179 

he  a  parting  with  it,  within  the  meaning  oi  the  cove- 
nant.-(a) 

Where  a  lease  contained  a  proviso  for  re-entry  in 
case  the  tenant  should  demise  or  let  the  demised  pre- 
mises, or  any  part  thereof,  for  all  or  any  part  of  the 
term  without  licence,  and  the  tenant  without  licence 
agreed  with  a  person  to  enter  into  partnership  with 
him,  and  that  he  should  have  the  use  of  certain  parts 
of  the  premises  exclusively,  and  of  the  rest  jointly 
with  him  the  tenant,  and  accordingly  let  him  into 
possession;  it  was  held  that  the  lease  was  forfeited 
thereby,  for  that  it  was  a  parting  with  the  exclusive 
possession  of  some  part  of  the  demised  premises,  and 
whether  it  were  gratuitously  or  for  rent  reserved  was 
immaterial,  (b) 

A  covenant  not  to  under-let  any  part  of  the  premises 
without  licence,  is  not  broken  by  taking  in  lodgers ; 
for,  per  Lord  Ellenborough ,  C.  J.  "  The  covenant 
can  only  extend  to  such  under-letting  as  a  licence 
might  be  expected  to  be  applied  for,  and  whoever 
heard  of  a  licence  from  a  landlord  to  take  in  a 
lodger  ?  (c) 

Where  the  lessee  enters  into  covenants  not  to  as- 
sign, &c.  the  Courts  will  distinguish  between  those 
acts  which  are  done  by  him  voluntarily,  and  those 
which  pass  in  invitum,  and  will  not  hold  the  latter  to 


(a)  Doe  d.  Pitt  v.  Laming,  1  R.      M.  &  S.  297. 

&M.36.  (<•)  Doe    d.    Pitt    v.   Laming,  4 

(*)   Roe  rf.  Dingley  v.  Sales,  1      Campb.  77. 


180 

be  a  breach  of  the  covenant.  Thus,  if  the  lessee  be- 
come bankrupt,  and  the  term  be  assigned  under  the 
commission,  no  forfeiture  will  be  incurred ;  (a)  unless, 
indeed,  there  be  an  express  stipulation  in  the  proviso 
that  it  shall  extend  to  the  bankruptcy  of  the  lessee.  (ii) 
And  where  a  lessee,  who  had  covenanted  not  to  "  let, 
set,  assign,  transfer,  make  over,  barter,  exchange,  or 
otherwise  part  with  the  indenture,"  with  a  proviso, 
that  in  such  case  the  landlord  might  re-enter,  after- 
wards gave  a  warrant  of  attorney  to  confess  judg- 
ment, on  which  the  lease  was  taken  in  execution  and 
sold ;  it  was  held  to  be  no  forfeiture  of  the  lease, 
unless  the  warrant  of  attorney  were  given  expressly 
for  the  purpose  of  having  the  lease  taken;  for  judg- 
ments, in  contemplation  of  law,  always  pass  in  in- 
vitum.  A.nd  Lord  Kenyan,  C.  J.  said,  "there  was  no 
difference  between  a  judgment  obtained  in  conse- 
quence of  an  action  resisted,  and  a  judgment  that  is 
signed  under  a  warrant  of  attorney  ;  since  the  latter 
is  merely  to  shorten  the  process,  and  lessen  the  ex- 
pense of  the  proceedings  :"  but  if  the  warrant  of 
attorney  be  expressly  given  for  the  purpose  of  having 
the  lease  taken  in  execution,  it  will  be  held  to  be  in 
fraud  of  the  covenant,  and  a  forfeiture  of  the  lease,  (c) 

This  protection  extends  also  to  the  party,  to  whom 
the  term  is  by  law  assigned.  The  reason  of  this  is, 
that  such  assignee  cannot  be  encumbered  with  the 
engagement  belonging  to  the  property  which  he 


(a)  Doe  d.  Goodbehere  v.  Bevan,      2  T.  R.  133. 

3  M.  &  S.  353.  (c)  Doe  d.  Mitchinson  v.  Carter, 

(6)  Roe  d.   Hunter  v.  Galliers,      8.  T.  R.  57.  300. 


AS   BETWEEN    LANDLORD    AND    TENANT.  181 

lakes,  but  must  be  allowed  to  divest  himself  of  it* 
and  convert  it  into  a  fund  for  the  benefit  of  the 
creditors ;  and  therefore  a  forfeiture  is  not  incurred, 
if  the  assignees  sell  the  term,  (a) 

But  where  one  leased  for  twenty-one  years,  u  if 
the  tenant,  his  executors,  &c.  should  so  long  continue 
to  inhabit  and  dwell  in  the  farm-house,  and  actually 
occupy  the  lands,  &c.  and  not  let,  set,  assign  over,  or 
otherwise  depart  with  the  lease,"  the  tenant  having 
become  bankrupt,  and  his  assignees  having  possessed 
themselves  of  the  premises,  and  sold  the  lease,  and  the 
bankrupt  being  out  of  the  possession  and  occupation 
of  the  farm,  it  was  held,  that  the  lessor  might  main- 
tain ejectment.  And  this  case  was  distinguished  from 
the  one  just  mentioned,  as  not  being  a  case  of  for- 
feiture; but  one  in  which  the  term  itself  was  made 
to  continue  and  depend  upon  the  personal  occupation 
of  the  lessee,  and  that  therefore  the  term  itself  ceased, 
when  the  lessee  had  no  longer  the  occupation  of  the 
farm,  (b) 

Where  the  lease  contained  a  proviso  for  re-entry 
on  the  lessee  assigning  without  licence,  and  the 
lessee  executed  a  deed  purporting  to  convey  all  his 
property  real  and  personal  to  trustees  for  the  be- 
nefit of  his  creditors,  and  afterwards  a  commission 
of  bankrupt  was  taken  out  against  him,  and  he  was 
duly  declared  a  bankrupt ;  it  was  held  that  the  trust- 
deed,  being  an  act  of  bankruptcy  and  void,  did  not 


(a)  Doe  d.  Goodbeherc  v.  Sevan,  (b)  Doe  d.  Lockwood  v.  Clarke, 

3  M.  &.  S.  353.  8  East   185. 


182  OF    THE    ACTION    OF    EJECTMENT 

operate  as  a  valid  assignment  of  the  lessee's  interest 
in  the  lease,  nor  create  a  forfeiture,  (a) 

Where  a  lease  contained  an  exception  out  of  the 
demise  of  all  trees  then  growing,  or  thereafter  to 
grow  upon  the  demised  premises,  and  also  a  proviso, 
that  if  the  defendant  should  commit  any  waste  in  or 
upon  the  said  demised  premises,  it  should  be  lawful 
for  the  lessor  to  re-enter ;  it  was  held  to  be  no  for- 
feiture of  the  lease,  to  cut  down  the  trees  except- 
ed ;  for  that  waste  could  only  be  committed  of  the 
thing  demised,  and  those  trees  being  excepted  out  of 
the  demise,  no  waste  could  be  committed  of  them, 
and  consequently  no  forfeiture,  within  the  provi- 
sion of  the  lease,  could  be  incurred  by  cutting  them 
down.  (6) 

A  covenant,  "  not  to  use  or  exercise,  or  permit  or 
suffer  to  be  used  or  exercised,  upon  the  demise  pre- 
mises, or  any  part  thereof,  any  trade  or  business 
whatsoever,"  is  broken  by  an  assignment  to  a  school- 
master, who  kept  his  school  upon  the  premises,  (c) 

A  covenant  that  the  lessee  shall  not  exercise  the 
trade  of  a  butcher  upon  the  premises,  is  broken  by 
selling  there  raw  meat  by  retail,  although  no  beasts 
were  there  slaughtered,  (d) 

A  proviso  for  re-entry  if  the  lessee  shall  permit 

(a)  Doe  d.  Lloyd  v.  Powell,  5  B.  (c)  Doe  d.  Bish  v.  Keeling,  1  M. 

&  C.  308.  &  S.  95. 

(6)  Goodright  d.  Peters  v.  Vivian,  (</)  Doe  d.  Gaskell  v.  Spry,  1  B. 

8  East.  190.  &A.  617. 


AS    BETWEEN    LANDLORD    AND    TENANT.  183 

any  person  to  inhabit  the  premises  who  should  carry 
on  certain  specified  trades,  (that  of  a  licensed  victual- 
ler not  being  one,)  or  any  other  business  that  might 
be,  or  grow,  or  lead  to  be  offensive,  or  any  annoy- 
ance or  disturbance  to  any  of  the  lessor's  tenants, 
is  not  broken  by  the  opening  of  a  public-house  upon 
the  premises,  (a) 

Where  a  lease  contained  a  covenant  "to  insure  and 
keep  insured  a  given  sum  of  money  upon  the  pre- 
mises during  the  term,  in  some  sufficient  insurance 
office,"  the  covenant  was  interpreted,  by  reasonable 
intendment,  to  mean  insurance  against  fire ;  and  the 
lessee,  having  insured  the  proper  sum,  but  omitted  to 
pay  the  annual  premium  within  the  time  allowed  by 
the  office  for  payment,  was  held  to  have  forfeited  his 
lease  upon  a  clause  of  re-entry,  although  he  paid 
the  premium  within  fourteen  days  after  such  time, 
and  no  action  had  been  commenced,  and  no  ac- 
cident had  happened  by  fire  to  the  premises,  in 
the  mean  time.  (6)  But  where,  in  pursuance  of  a 
similar  covenant,  the  lessee  effected  an  insurance 
(the  policy  containing  a  memorandum,  that  in  case 
of  the  death  of  the  assured,  the  policy  might  be 
continued  to  his  personal  representative,  provided 
an  indorsement  to  that  effect  was  made  upon  it  within 
three  months  after  his  death),  and  died,  and  the  re- 
presentative, after  the  three  months  had  expired,  but 


(a)  Jones  v.  Thome,   1  B.  &  C.  Reynolds  v. Pitt,  2  Price,  206— 212; 

715.  and  Bracebridge  v.  Buckley,  2  Price, 

(6)   Doe  d.  Pitt  v.   Sherwin,  3  200. 
Cainpb.  134;  vide  Rolfe  v.  Harris, and 


184        OF  THE  ACTION  OF  EJECTMENT 

before  ejectment  brought,  obtained  the  proper  in- 
dorsement, Lord  Ellenborough,  C.  J.  was  of  opinion 
that  the  policy  did  not  become  void  for  want  of  the 
indorsement  within  the  three  months,  but  at  most  was 
only  voidable  by  the  company,  and  ruled,  that  no 
forfeiture  was  incurred,  (a) 

A  covenant  in  a  lease  to  deliver  up  at  the  end 
of  the  term  all  the  trees  standing  in  an  orchard  at 
the  time  of  the  demise,  "  reasonable  use  and  wear 
only  excepted"  is  not  broken  by  removing  trees  de- 
cayed and  past  bearing,  from  a  part  of  the  orchard 
which  was  too  crowded.  (5) 

A  lease  with  a  clause  of  re-entry,  for  non-perform- 
ance of  covenants,  contained  a  general  covenant  on 
the  part  of  the  lessee,  to  keep  the  premises  in  repair, 
and  also  another  independent  covenant  to  repair, 
within  three  months  after  notice ;  the  landlord,  after 
serving  the  tenant  with  a  notice  to  repair  forthwith, 
was  allowed  to  bring  an  ejectment  within  the  three 
months,  for  a  breach  of  the  general  covenant  to  re- 
pair, (c)  But  where  on  similar  covenants,  and  with 
a  similar  clause  of  re-entry,  the  landlord  gave  a 
notice  to  repair  within  the  three  calendar  months 
from  the  date  of  the  notice,  it  was  held  that  he  had 
by  such  notice  precluded  himself  from  insisting  on 
the  forfeiture  until  the  expiration  of  the  three 
months,  (d) 

(a)  Doe  d.  Pitt  v.  Laming,  4  (c)  Roe  d.  Goatley  v.  Paine,  2 

Campb.  76.  Campb.  520. 

(6)  Doe  d.  Jones  v.  Crouch,  2  (d)  Doe  d.  Morecraft  c.  Meux,  4 

Campb.  449.  B.  &  C.  606. 


AS    BETWEEN    LANDLORD    AND    TENANT.  185 

The  breaking  of  a  door-way  through  the  wall  of 
a  demised  house  into  an  adjoining  house,  and  keep- 
ing it  open  for  a  long  space  of  time,  amounts  to  a 
breach  of  covenant  to  repair,  (a) 

Where  a  lease  contained  a  proviso  for  re-entry, 
if  the  lessee  committed  waste  to  the  value  of  10/. 
and  the  tenant  pulled  down  some  old  buildings  of 
more  than  10/.  value,  and  substituted  others  of  a 
different  description ;  it  was  held  that  the  waste  con- 
templated in  the  proviso  was  waste  producing  an 
injury  to  the  reversion ;  and  that  it  was  a  question 
for  the  jury  whether  such  waste  had  been  commit- 
ted, (b) 

Where  a  lease,  rendering  rent,  contained  a  cove- 
nant that  the  lessee  should  not  assign  without  leave  of 
the  lessor,  after  which  covenant  was  a  proviso,  that  if 
the  rent  should  be  in  arrear,  or  if  all  or  any  of  the 
covenants  thereinafter  contained  on  the  part  of  the 
lessee,  should  be  broken,  it  should  be  lawful  for  the 
lessor  to  re-enter,  and  there  were  no  covenants  on 
the  part  of  the  lessee  after  the  proviso,  but  only  a  cove- 
nant by  the  lessor,  that  the  lessee  paying  rent,  and  per- 
forming all  and  every  the  covenants  thereinbefore 
contained  on  his  part  to  be  performed,  should  quietly 
enjoy ;  it  was  held  that  the  lessor  could  not  re-enter 
for  breach  of  the  covenant  not  to  assign,  the  proviso 
being  restrained  by  the  word  "  hereinafter"  to  subse-  , 


(«)  Doe  d.   Vickery  v.  Jackson,      (6)  Doe  d.  Earl  of  Darlington  r- 
2  Stark.  293.  Bond,  5  B.  &  C.  85 o. 


186  OF    THE    ACTION    OF    EJECTMENT 

quent  covenants;  and  although  there  were  none  such, 
yet  the  Court  could  not  reject  the  word,  (a) 

Where  a  beneficial  long  lease  reserved  to  the  lessee 
the  liberty  to  cut  down  and  dispose  of  all  timber,  Sec- 
then  growing,  or  thereafter  to  grow  during  the  term, 
subject  to  the  following  proviso,  that  ivhen  and  so 
often  as  the  lessee  should  intend,  during  the  term,  to 
fell  timber,  &c.  he  should  immediately  give  notice  in 
writing  to  the  lessor  of  such  intention,  who  should 
thereupon  have  the  option  of  purchasing  it,  with  a 
power  of  re-entry,  in  case  of  a  breach  of  this  proviso, 
and  the  lessee,  soon  after  the  execution  of  the  lease, 
(at  that  time  intending  bond  fide  to  cut  down  the 
whole  of  the  then  growing  timber,)  gave  the  proper 
notice  in  writing  to  the  lessor,  who  did  not  accept  the 
purchase,  but  disclaimed  it ;  the  lease  was  not  for- 
feited, although  the  lessee  did  not  forthwith  fell  all 
the  timber,  &c.  but  proceeded  to  cut  down  the  same 
in  different  seasons  at  his  own  convenience,  without 
giving  any  fresh  notices  to  the  lessee,  or  his  assignee, 
to  whom  he  had,  previously  to  the  last  cuttings,  con- 
veyed his  interest.  (6) 

Where  a  lease  of  certain  waggon-ways  was  granted 
to  A.  B.  under  the  authority  of  an  act  of  parliament, 
in  which,  as  well  as  in  the  lease,  there  was  a  proviso 
for  re-entry,  in  case  he  neglected  in  any  one  year 


(a)  Doe  d.  Spencer  v.  Godwin,  intimated  an  opinion,  that  a  court 

4  M.  &  S.  265.  of  equity  would  probably,  under 

(i)  Goodtitle  d.  Luxmore  v.  Sa-  the  circumstances,  give  the  lessor 
ville,  16  East.  87.  Lord  Ellen-  or  his  assignee  a  new  option  to  pur- 
borough,  C.  J.  and  Le  Blanc,  J.  chase. 


AS    BETWEEN    LANDLORD    AND    TENANT.  187 

to  bring  a  certain  number  ofcoah  to  C.,  for  the  use  of 
the  inhabitants  of  L.,  and  sell  them  there  at  a  certain 
price ;  and  by  a  subsequent  act,  the   preamble   of 
which  recited  that  the  price  was  inadequate,  and  that 
the  inhabitants  ofL.  would  sustain  great  inconvenience 
if  A.  B.  ceased  to  supply  them  with  coals,  it  was 
enacted,  first,  that  the   former  act,   confirming  the 
lease,  (except  such  parts  as  were  thereby  altered  or 
repealed,)  should  continue;    then  that  A.  B.  might 
sell  his  coals  brought  to  and  deposited  at  (7.,  or  at 
any  other  place  near  thereto,  to  be  used  as  a  repo- 
sitory/or coals  instead  thereof,  at  a  certain  increased 
price;  and  another  section  provided,  that  if  A.  B. 
neglected  to  bring  the  stipulated  quantity  of  coals  to 
(7.,  or  to  such  other  place  near  thereto,  to  be  used  as 
a  repository  for  coals  instead  thereof,  and  sell  them 
there  at  the  price  fixed  by  the  act,    his  interest  in 
the  waggon-ways   should  cease :  it   was  held,  that 
although  the  preamble  did  not  recite  an  intention  to 
give  A.  B.  the  liberty  to  change  the  place  used  as  a 
repository  for  coals,  and  although  it  was  not  expressly 
enacted  that  he  might  do  so,  yet  that  the  intention  of 
the  legislature  to  give  him  that  privilege  was  clear, 
and  that  he  might  do  so  without  forfeiting  his  interest 
in  the  waggon-ways ;  because,  in  construing  acts  of 
parliament,  the  Court  must  take  into  consideration, 
Dot  only  the  language  of  the  preamble,  or  of  any  par- 
ticular clause,  but  of  the  whole  act ;  and  if  in  some  of 
the  enacting  clauses  expressions  are  found  of  more 
extensive  import  than  in  others,  or  than  in  the  pre- 
amble, the  Court  will  give  effect  to  those  more  exten- 
sive expressions,  if  upon  a  view  of  the  whole  act,  it 


188        OF  THE  ACTION  OF  EJECTMENT 

appears  to  have  been  the  intention  of  the  legislature 
that  they  should  have  effect,  (a) 

In  all  the  cases  above-mentioned,  the  tenancy  was 
created  by  deed ;  but  the  principle  is  the  same  if  the 
tenant  holds  under  an  agreement  for  a  lease,  which 
specifies  the  covenants  to  be  inserted  in  the  lease, 
and  that  there  shall  be  a  power  of  re-entry  for  a 
breach  of  them,  (b) 

By  a  memorandum  of  agreement,  in  consideration 
of  the  rent  and  conditions  therein  after-mentioned, 
A.  was  to  have,  hold,  and  occupy  as  on  lease,  certain 
premises  therein  specified,  at  a  certain  rent  per  acre. 
And  it  was  stipulated)  that  no  buildings  should  be 
included  or  leased  by  virtue  of  the  agreement ;  and  it 
was  further  agreed  and  stipulated,  that  A.  should 
take  at  the  rent  aforesaid,  certain  other  parcels,  as  the 
same  might  fall  in ;  and  lastly,  it  was  stipulated  and 
conditioned  that  A.  should  not  assign,  transfer,  or 
under-let,  any  part  of  the  said  lands  and  premises 
otherwise  than  to  his  wife,  child,  or  children ;  it  was 
held,  that  by  the  last  clause  a  condition  was  created, 
for  the  breach  of  which  the  lessor  might  maintain  an 
ejectment,  (c) 

But  in  an  agreement  to  let,  in  which  there  was  no 
clause  of  entry,  the  following  stipulation  was  held  to 
be  a  covenant,  and  not  a  condition  operating  in 

(a)  Doe  d.  By  water  v.  Brandling,      6  Esp.  106. 

7  B.  &  C.  643.  (c)  Doe  d.  Henniker  v.  Watt,  8  B. 

(6)  Doe  c?.  Oldershaw  v.  Breach,      &  C.  308. 


AS  BETWEEN  LANDLORD  AND  TENANT.     189 

defeasance  of  the  estate :  "  It  is  also  hereby  agreed, 
"  and  clearly  understood,  that  in  case  the  said  A.  W. 
((  or  his  heirs,  executors,  and  assigns,  should  want 
"  any  part  of  the  said  land  to  build  or  otherwise,  or 
"  cause  to  be  built,  then  the  said  T.  R.,  or  his  heirs, 
"  executors,  or  assigns,  shall  and  will  give  up  that  part 
"  or  parts  of  the  said  lands  as  shall  be  requested  by  the 
(t  said  A.  W.,  by  his  making  an  abatement  in  propor- 
"  tion  to  the  rent  charged,  and  also  to  pay  for  so 
"  much  of  the  fence,  at  a  fair  valuation,  as  he  shall 
tf  have  occasion  from  time  to  time  to  take  away,  by 
<e  his  giving  or  leaving  six  months'  notice  of  what  he 
"  intends  to  do."  (a) 

Next,  of  the  parties  who  may  take  advantage 
by  forfeiture  of  the  breach  of  a  covenant  or  con- 
dition. 

To  enable  a  reversioner  (6)  to  take  advantage  of  a 
forfeiture,  it  is  necessary  that  he  should  have  the 
same  estate  in  the  lands  at  the  time  of  the  breach,  as 
he  had  when  the  condition  was  created;  an  ex- 
tinguishment of  the  estate  in  reversion,  in  respect  of 
which  the  condition  was  made,  extinguishing  the  con- 
dition also,  (c)  Thus,  where  a  lease  was  made  for  a 
hundred  years,  and  the  lessee  made  an  under-lease  for 
twenty  years,  rendering  rent,  with  a  clause  of  re- 
entry, and  afterwards  the  original  lessor  granted  the 
reversion  in  fee,  and  the  grantee  purchased  the  re- 

(a)  Doe  d.  Wilson  v.  Phillips,  2      the  assignee  of  a  reversion    may 
Bing.  13.  sue,  vide  ante,  73. 

(V)    lor  covenants  upon   which         (c)  Dumpor's  case,  4  Co.  120,(6). 


190        OF  THE  ACTION  OF  EJECTMENT 

version  of  the  term ;  it  was  holden  that  the  grantee 
should  not  have  either  the  rent,  or  the  power  of  re-en- 
try, for  the  reversion  of  the  term  to  which  they  were 
incident  was  extinguished  in  the  reversion  in  fee.  (a) 

The  reversioner  must  also  be  entitled  to  the  rever- 
sion, at  the  time  the  forfeiture  is  committed,  or  he 
cannot  take  advantage  of  it.  (/>) 

When  the  condition  is,  that  the  lessee  will  not  do 
any  particular  act  without  leave  from  his  lessor,  if 
leave  be  once  granted,  the  condition  is  gone  for  ever ; 
for  the  condition  is  to  be  taken  strictly,  and  by  the 
licence  it  is  satisfied,  (c)  And,  in  like  manner,  when 
a  condition  is  entire,  a  licence  to  dispense  with  a  part 
of  the  condition  is  a  dispensation  of  the  whole.  Thus, 
where  a  lease  was  made  to  three,  on  condition  that 
they,  nor  any  of  them,  should  alien  without  licence  of 
the  lessor,  and  the  one  by  licence  aliened  his  part,  and 
afterwards  the  other  two  without  licence  aliened  their 
parts,  it  was  adjudged  the  lessor  could  not  enter,  for 
the  condition  was  dispensed  with,  (c)  So  likewise, 
where  the  lease  contains  a  clause,  that  the  lessee  shall 
not  assign  without  leave  from  his  lessor,  the  lessee, 
under  a  licence  to  assign  part  of  the  premises,  may 
assign  the  whole  without  incurring  a  forfeiture,  (d} 
But  the  licence  must  be  such  as  is  required  by  the 


(a)  Thre'r  v.  Barton,  Moore,  94.  815.    S.  C.  4  Co.  119,  (6). 

Webb  v.  Russell,  3  T.  R.  393.  402.  (d)    Roe  d.  Gregson  v.  Harrison, 

(6)  Fenn  d.  Matthews  v.  Smart,  2  T.  R.  425.    Seers  v.  Hind,  1  Vez. 

12  East.  444.  jun.  294. 

(c)  Dumpor  v.  Syms,  Cro.  Eliz. 


AS    BETWEEN    LANDLORD    AND    TENANT.  191 

lease;  and  therefore,  where  the  lease  required  the 
licence  to  be  in  writing,  a  parol  licence  was  held  to  be 
insufficient,  (#) 

Provisoes  for  re-entry  are  also  construed  strictly 
with  respect  to  the  parties  who  may  take  advantage 
of  them,  and  only  include  the  persons  who  are  ex- 
pressly named.  Thus,  a  power  for  C.  to  enter  will 
not  extend  to  his  executor,  (b)  And  it  seems  also,  that 
if  a  lessee  covenant  with  his  lessor  that  he  will  not 
assign,  &c.,  a  covenant  so  framed  will  not  extend  to 
his  executors  or  administrators,  although  if  the  exe- 
cutors or  administrators  be  mentioned  in  the  clause, 
they  will  be  bound  by  it.  (a} 

So  also,  where  a  lease  contained  a  covenant  that 
the  lessee,  his  executors  or  administrators  (without 
mentioning  assigns)  should  not  under-let,  and  the 
lessee  became  bankrupt,  and  his  assignees  assigned 
the  premises  to  a  third  person,  who  re-assigned  to  the 
bankrupt,  (having  obtained  his  certificate,)  who  under- 
let them  ;  it  was  held  that  the  lessee  having  been  dis- 
charged of  all  his  covenants  by  his  bankruptcy,  the 
under-letting  by  him  was  in  the  character  of  assignee, 
and  therefore  no  forfeiture  of  the  lease,  (c) 

A  power  of  re-entry  cannot  be  reserved  to  a 
stranger  ;  (o?)  and  where,  in  a  building  lease,  a  trus- 
tee and  his  cestui  que  trust  were  both  demising  par- 

(a)  Roe  d.  Gregson  v.  Harrison,      waite,  Willes,  500. 

2  T.  R.  425.    Seers  v.  Hind,  1  Vez.         (c)  Doerf.Chere  v.  Smith.  1  Mars, 
jun. 294.  359. 

(b)  Hassel  </.  Hodson  v.  Gowth-         (d)  Co.Litt.  214. 


19!2  OF    THE    ACTION    OP    EJECTMENT 

ties,  and  the  power  of  re-entry  was  reserved  to  both, 
and  the  state  of  the  title  appeared  in  the  recitals  in 
the  lease,  the  Court,  without  argument,  held  the  pro- 
viso to  be  void,  (a) 

But  where  a  lessee  made  an  underlease  containing 
a  proviso  that  the  lessor  and  lessee  might  re-enter 
for  breach  of  covenant,  it  was  held  that  the  lessee 
might  alone  maintain  ejectment  without  joining  the 
lessor,  (b) 

And  where  a  party,  being  possessed  of  a  term  of 
years,  demised  his  whole  interest  subject  to  a  right  of 
re-entry  on  the  breach  of  a  condition,  it  was  held 
that  he  might  enter  for  condition  broken,  although  he 
had  no  reversion,  (c) 

The  forfeiture  of  a  lease  by  breach  of  a  covenant 
or  condition  may  be  waived,  in  like  manner  as  a 
forfeiture  for  non-payment  of  rent,  or  a  notice  to 
quit;  that  is  to  say,  if  the  landlord  do  any  act,  with 
knowledge  of  the  breach  which  can  be  con- 
sidered as  an  acknowledgment  of  a  tenancy  still 
subsisting ;  as,  for  example,  if  he  receive  rent  accru- 
ing subsequently  to  the  forfeiture,  (d )  unaccompanied 

(a)  Doe  d.  Barber  v.  Lawrence,  caseofDoed.Scottv.Miller,2C.&P 

4  Taunt.  23.  seems  very  doubtful.  The  defendant 

(6)  Doe  d.  Bedford  v.  Wheeler,  4  held  under  a  lease  containing  a  clause 

Bing,  276.  of  re-entry  on  breach  of  covenant 

(c)  Doe  d.  Freeman  v,  Bateman,  to  repair — an  ejectment  was  brought 
2  B.  &  A.  158.  on  such  clause  of  re-entry,  and  after 

(d)  Fox  v.  Swann,  Styles,  482.     proof  being    given   of    execution 
Goodright    d.   Walter  v.    Davids,     of  the  lease,  and  of  the  dilapidated 
Cowp.  803.    The  authority  of  the      state  of  the  premises  up  to  the  day 


AS  BETWEEN  LANDLORD  AND  TENANT.     193 

by   circumstances    which    show    a    contrary    inten- 
tion, (a) 

But  a  waiver  of  one  forfeiture  incurred  by  breach  of 
covenant,  will  not  be  a  waiver  of  a  second  forfeiture 
incurred  by  another  breach  of  the  same  covenant; 
nor  where  the  breach  is  a  continuing  breach,  will  the 
landlord  be  precluded  from  taking  ad  vantage  of  it,  by 
having  received  rent,&c.  after  the  breach  was  originally 
committed.  Thus  where  a  right  of  re-entry  was  re- 
served on  a  breach  of  covenant  not  to  underlet,  it 
was  held  that  the  lessor  was  entitled  to  re-enter  upon 
a  second  under-letting,  although  he  had  waived  his 
right  so  to  do  upon  the  first,  (b]  So  also  where  the 
forfeiture  incurred  was  by  using  rooms  in  a  house  in 
a  manner  prohibited  by  the  lease,  it  was  held  that 
such  user  was  a  continuing  breach,  and  that  the  land- 
lord might  recover  after  receiving  rent,  provided  the 
user  continued  after  such  receipt,  (c]  So  also  where 
a  lease  of  coal-mines  reserved  a  certain  rent,  and 
contained  a  proviso  that  the  lease  should  be  void  if 
the  tenant  should  cease  working  at  any  time  two 
years,  and  the  tenant  did  cease  working  two  years 

of  the  trial ;  the  defendant  put  in  a  to  quit  necessary  to  determine  the 

written  notice  to  the  lessor  to  quit  tenancy,  nor  could  it  be  determined 

at  the  end  of  six  months  from  the  by  such  notice.    Best,  C.  J.  held 

date  thereof,  (which  notice  had  not  that  the  giving  of  such  notice  was 

expired     when    the     action    was  equivalent  to  the  receipt  of  rent,  and 

brought,)  describing  the  premises  in  operated  as  a  waiver  of  the  forfeiture 

these  terms — "  which  you  now  hold  until  the  time  of  its  expiration. 

of  me  as  tenant  from  year  to  year.1'  (a)  Ante,  149. 

There  was  no  proof  that  the  lessor  (b)  Doe  d.  Boscawen  v.  Bliss,  4 

had  any  knowledge  of  the  state  of  Taunt.  735. 

repair  of  the  premises,  at  the  time  he  (c)  Doe  d.  Ambler  v.  Woodbridge, 

gave  the  notice ;  nor  was  a  notice  9  B.  &  C.  376. 


194  OP   THE    ACTION    OF    EJECTMENT 

and  then  paid  rent,  but  did  not  resume  the  working, 
it  was  held  that  this  was  a  continuing  breach,  and 
that  ejectment  might  be  maintained  for  the  ceasing  to 
work  after  the  payment  of  the  rent,  (a) 

But  in  a  case  where  a  lease  contained  a  covenant 
to  repair,  with  a  right  of  re-entry,  in  case  the  lessee 
should  not  repair  within  three  months  after  notice, 
and  the  landlord  gave  notice,  and  after  the  three 
months  had  expired,  received  rent  accruing  after 
such  expiration,  and  then  brought  an  ejectment,  the 
premises  continuing  out  of  repair,  and  the  jury  found  a 
verdict  for  the  defendant,  the  Court  of  King's  Bench 
refused  to  set  the  verdict  aside,  notwithstanding  the 
opinion  of  Lord  Kenyon,  as  expressed  on  the  trial, 
that  the  forfeiture  had  not  been  waived.  And  it 
seems  the  jury  were  right,  for  the  power  to  re-enter 
was  not  given  for  breach  of  the  general  covenant  to 
repair,  but  "  in  case  the  lessee  should  not  repair 
within  three  months  after  notice ;"  the  receipt  of  rent 
therefore  after  the  expiration  of  the  notice  to  repair 
was  a  waiver  of  that  notice,  and  consequently  a 
fresh  notice  was  necessary  to  bring  the  party  within 
the  penalty  of  the  proviso,  (b) 

Where  the  defendant  being  the  mortgagee  of  a 
term,  purchased  the  mortgagor's  whole  interest  in 
the  premises,  in  consequence  of  the  lessor's  advice, 
"to  take  to  the  premises,  and  finish  the  buildings," 
given  after  a  right  of  re-entry  had  accrued  for  the 
non-completion  of  the  buildings ;  it  was  held,  that  the 

(«)  Doe  d.  Bryan  v.  Banks,  4  B.         (V)  Fryett  d.  Harris  v.  Jeffreys,  1 
&A.  401.  Esp.S93. 


AS    BETWEEN    LANDLORD    AND   TENANT.  195 

lessor's  right  of  re-entry  was  not  thereby  waived,  but 
suspended  only  for  such  reasonable  time  after  the 
purchase,  as  might  be  required  to  complete  the 
buildings,  and  that  ejectment  might  be  maintained  for 
the  forfeiture  after  that  time  had  elapsed,  against  the 
purchaser,  who  had  proceeded  in  part  to  finish,  but 
had  never  wholly  completed  the  buildings,  or  put 
them  in  a  habitable  state,  (a) 

A  lease  contained  a  covenant  on  the  part  of  the 
lessee,  to  insure  the  premises  in  the  joint  names  of 
himself  and  the  lessor,  and  in  two-thirds  of  the  value 
of  the  premises  demised.  Both  parts  of  the  lease 
continued  in  the  possession  of  the  lessor,  and  an  ab- 
stract only  was  delivered  to  the  lessee,  in  which  it 
was  stated,  that  the  tenant  was  to  insure  the  pre- 
mises in  two-thirds  of  the  value,  but  it  was  not 
stated  in  whose  name  or  names  the  policy  was  to  be 
effected.  The  lessee  insured  in  his  own  name  only, 
and,  as  was  contended,  to  a  less  amount  than  two-thirds 
of  the  value  of  the  premises,  but  to  the  same  amount 
as  the  lessor  had  himself  insured  the  premises  during 
two  years  of  the  lease,  when  the  lessee  had  been  in  em- 
barrassed circumstances.  Lord  Tenterden,  C.  J.  ruled 
that  although  there  was  no  dispensation  or  release 
from  the  covenant,  yet  that  if  the  conduct  of  the  lessor 
of  the  premises  had  been  such  as  to  induce  a  reason- 
able and  cautious  man  to  believe,  that  he  would  do  all 
that  was  necessary  or  required  of  him,  by  insuring 
in  his  own  name,  and  to  the  amount  proved,  he  could 
not  proceed  against  his  lessee  for  a  forfeiture ;  and 


(a)  Dee  d.  Sore  v.  Ekins,  1  R.  &  M.  29. 

o2 


196  OF  THE    ACTION    OF    EJECTMENT 

he  left  to  the  consideration  of  the  jury,  the  question 
whether  such  had  been  the  conduct  of  the  lessor :  the 
jury  found  a  verdict  for  the  defendant,  (a) 

A  landlord  will  not  lose  his  right  to  re-enter,  by 
merely  lying  by,  (however  long  the  period,)  and  wit- 
nessing the  act  of  forfeiture ;  but  it  seems,  that  if  with 
full  knowledge  thereof,  he  permits  the  tenant  to 
expend  money  in  improvements,  it  is  a  circumstance 
from  which  the  jury  may  presume  a  waiver,  as  well  as 
ground  for  application  to  a  court  of  equity  for  re- 
lief. (6) 

It  seems  scarcely  necessary  to  observe,  that  no  act 
of  the  landlord  will  operate  as  a  confirmation  of  a 
lease,  rendered  voidable  by  a  breach  of  covenant,  un- 
less he  had  full  notice,  at  the  time  of  such  act,  that 
the  forfeiture  had  been  committed,  (c) 

Before  quitting  this  branch  of  our  subject,  it  is  ne- 
cessary to  notice  a  material  distinction  which  pre- 
vails between  leases  for  lives,  and  leases  for  years, 
as  to  the  consequences  of  a  forfeiture  upon  the 
breach  of  a  condition,  where  the  lease  is  declared 
"  to  be  null  and  void?  or  "  to  cease  and  determine, 
&c."  upon  the  breach  of  the  condition,  instead  of 
being  expressed  in  the  common  form,  "  that  it  shall 
and  may  be  lawful  for  the  lessor,  in  such  case,  to  re- 
enter?  In  leases  for  lives,  whatever  may  be  the 


(a)  Doe  d.  Knight  v.  Howe,  1  R.     Taunt.  78. 

&  M.  343.  (c)  Roe  d.  Gregson  v.  Harrison, 

'b}  Doe  d.  Sheppard  v.  Allen,  3      2  T.  R.  425. 


AS    BETWEEN    LANDLORD    AND   TENANT. 

words  of  the  condition,  it  is  in  all  cases  held,  that  if 
the  tenant  be  guilty  of  any  breach  of  it,  the  lease 
is  voidable  only,  and  not  void ;  and  therefore  not 
determined  until  the  lessor  re-enters.  Because  when 
an  estate  commences  by  livery,  it  cannot  be  deter- 
mined before  entry  ;  and  consequently,  if  the  lessor  do 
any  act  which  amounts  to  a  dispensation  of  the  breach, 
the  lease,  which  before  was  voidable  only,  is  thereby 
affirmed,  and  the  forfeiture  waived.  But  when  a  con- 
dition of  the  import  of  those  first  above-mentioned 
is  inserted  in  a  lease  for  years,  if  the  lessee  be  guilty 
of  any  breach  of  it,  the  lease  becomes  absolutely  void, 
and  determined  thereby ;  and  cannot  be  again  set  up 
by  any  subsequent  act  of  the  lessor.  But  if  the  con- 
dition be  "  that  it  shall  and  may  be  lawful  for  the 
lessor  to  re-enter,"  or  "  that  the  term  shall  cease  and 
determine,  if  the  lessor  please,"  (a)  or  the  like, 
the  lease  will  be  only  voidable  by  a  breach  of  the 
condition ;  and  the  forfeiture  may  be  waived  by 
a  subsequent  acknowledgment  of  a  tenancy,  in 
the  same  manner  as  in  all  cases  of  leases  for 
lives,  (b) 

These  distinctions  however  do  not  exist,  when  the 
forfeiture  accrues  by  reason  of  the  non-performance 
of  a  covenant,  instead  of  the  breach  of  a  condition 
In  all  cases  of  this  nature,  whatever  may  be  the  words 
of  the  proviso,  leases  for  lives  and  leases  for  years 
are  governed  by  the  same  principles,  and  a  forfeiture 

(a)Doed.  Bristowr.  Old,  K.  B.  (6)  Co.  Litt.215,  (o).  Pennant's 
Sittings  after  T.  T.  1814.  M.  S.  case,  3  Co.  64,  65. 


198  OF    THE    ACTION    OP    EJECTMENT,  &C. 

may  be  enforced,  or  the  lease  confirmed,  at  the  option 
of  the  lessor,  (a)  ^JJUL-UL 


A  proviso  in  a  lease  to  re-enter  for  a  condition 
broken,  operates  only  during  the  term,  and  cannot  be 
taken  advantage  of  after  its  expiration.  Thus,  where 
a  lease  for  ninety-nine  years,  if  A.  and  B.  should  so 
long  live,  was  granted,  with  a  proviso,  giving  the 
power  of  re-entry,  in  case  the  lessee  should  under-let 
the  premises  for  the  purpose  of  tillage,  and  an  under- 
tenant of  the  lessee  ploughed  up  and  sowed  the  land, 
but  the  lessor  did  not  enter  during  the  continuance  of 
the  estate  :  it  was  held  in  an  action  of  trespass  by  the 
lessor  against  the  under-tenant,  for  entering  upon  the 
land,  after  the  determination  of  the  estate,  for  the 
purpose  of  carrying  off  the  emblements,  that  the 
plaintiff'  having  never  been  in  possession  by  right  of 
re-entry  for  condition  broken,  could  have  no  ad- 
vantage thereof,  and  that  the  defendant,  who  ploughed 
and  sowed  the  land,  was  entitled  to  take  the  emble- 
ments. (£) 

(a)  Rede  v.  Fair,  6  M.  &  S.  121.      C.  519. 

Doe  d.  Bryan  v.  Bancks,  4  B.  &  A.         (b)  Johns  v.  Whitley,  3   Wils. 
401.    Arnsby  v.  Woodward,  6  B.  &      127. 


199 


CHAPTER  VI. 


Of  the  Ancient  Practice  ;  and  the  Cases  in  which  it 
is  still  necessary.  . 

Tl    * 

WHEN  the  remedy  by  ejectment  is  pursued  in  an 
inferior  court,  the  fictions  of  the  modern  system  are 
not  applicable,  for  inferior  courts  have  not  the  power 
of  framing  rules  for  confessing  lease,  entry,  and 
ouster,  nor  the  means,  if  such  rules  were  entered 
into,  of  enforcing  obedience  to  them,  (a)  When  also 
the  premises  are  vacated,  and  wholly  deserted  by  the 
tenant,  and  his  place  of  residence  is  unknown,  (£) 
the  modern  practice,  for  reasons  which  will  be  noticed 

(a)  The  King  v.  Mayor  of  Bris-  38.) 

tow,  1  Keb.  690.  Sherman  v.  Cocke,  (6)  Strict  proof  of  this  fact  will 

1  Keb.  795.    It  is  said  by  Gilbert,  be  required ;  and  if  it  appear,  that 

C.B.  that  if  the  defendant  in  an  in-  the  premises  were  not  wholly  de- 

ferior  court,  enter  into  a  rule  to  serted,  or  that  the  plaintiff's  lessor 

confess  lease,  &c.  and  the  cause  be  knew  where  the  tenant  lived,  a judg- 

removed,  and  the  judge  of  the  in-  men  t  obtained  by  means  of  the  an- 

ferior  court  grant  an  attachment  cient  practice  will  be  set  aside.    A 

against  the  defendant  for  disobedi-  very  little  matter  has  been  held  suf- 

ence  to  the  rule,  the  superior  court  ficient  to  keep  possession,  such  as , 

will  grant  an  attachment  against  leaving  beer  in  a  cellar,  or  hay  in  a 

thejudge,  for  exceeding  his,  autho-  barn.  (Savage  v.  Dent,  Stran.  1064.) 

rity,  and  obstructing  the  course  of  Jones  d.  Griffiths  v.  March,  4  T.  R. 

the  superior  court.     (Gilb.   Eject.  464.) 


200  OF    THE    ANCIENT    PRACTICE. 

in  a  subsequent  chapter,  (a)  cannot  be  adopted. 
When,  therefore,  the  party  brings  his  action  in  a 
superior  court,  the  possession  being  vacant,  (6)  and 
the  lessor's  abode  unknown,  and  when  he  is  desirous 
of  trying  his  title  in  a  court  of  inferior  jurisdiction, 
all  the  forms  of  the  ancient  practice  must  be  ob- 
served :  a  lease  must  be  sealed  upon  the  premises ; 
an  ouster  actually  made  ;  and  the  parties  to  the  suit 
will  be  real,  and  not  imaginary  persons. 

The  manner  of  proceeding  in  these  cases  is  as 
follows.  A.  the  party  claiming  title,  must  enter  upon 
the  land  before  the  essoign-day  of  the  term  of  which 
the  declaration  is  to  be  entitled,  and  whilst  on  the 
premises,  execute  a  lease  of  them  to  B.  (any  per- 
son (c)  who  may  accompany  him,)  at  the  same  time 
delivering  to  him  the  possession  by  some  one  of  the 
common  modes.  C.  (some  other  person)  must  then 
enter  upon  the  premises,  and  eject  B.  therefrom,  and 
having  done  so,  must  remain  upon  them,  whilst  B. 
delivers  to  him  a  declaration  in  ejectment,  founded 
upon  the  demise  contained  in  the  lease;  and  in  all 
respects  like  the  declaration  in  the  modern  proceed- 
ings, (d)  except  that  the  parties  to  it  are  real  instead 
of  fictitious  persons ;  B.  being  made  the  plaintiff,  A. 
the  lessor,  and  C.  the  defendant.  To  this  declaration 
a  notice  must  be  added,  signed  by  JB.'s  attorney,  and 
addressed  to  C.,  requiring  him  to  appear  and  plead 

(a)  Chap.  VII.  ordered,  "  that  for  the  prevention 

(6)  Appendix,  No.  7.  of  maintenance  and  brocage,  no  at- 

(c)  Attornies  form  an   exception  torney  shall  be  lessee  in  an  eject  • 

to  this  statement ;  for,  by  the  rules  ment." 

of  B.  R.  and  C.  B.  (M.T.  1654.)  it  is  (d)  Appendix,  No.  12. 


OF  THE  ANCIENT  PRACTICE.          201 

to  the  declaration,  and  informing  him  that  if  he 
do  not,  judgment  will  be  signed  against  him  by 
default,  (a) 

When  the  landlord,  or  person  claiming  title,  does 
not  wish  to  go  through  this  ceremony  himself,  he 
may  execute  a  power  of  attorney,  authorizing  another 
to  enter  for  him ;  (6)  and  the  proceedings  are  then 
the  same  as  if  he  himself  entered.  But  it  must  be 
remembered,  that  if  it  be  necessary,  when  the  an- 
cient practice  is  used,  to  join  the  wife  in  the  demise, 
the  lease  must  be  executed  by  the  husband  and  wife, 
in  their  proper  persons,  because  a  feme  covert  can- 
not constitute  an  attorney,  (c) 

When  the  ancient  practice  is  resorted  to,  the  suit 
must  proceed  in  the  name  of  the  casual  ejector,  and 
if  the  proceedings  are  in  a  superior  court,  no  person 
claiming  title  will  be  admitted  to  defend  the  action. 
If,  therefore,  in  such  case,  the  right  to  the  premises 
be  disputed,  the  party  who  seals  the  lease  must,  in 
the  first  instance,  recover  the  possession,  and  the 
other  party  must  afterwards  bring  a  common  eject- 
ment against  him  to  try  the  title,  (d) 

When  the  proceedings  are  in  the  King's  Bench,  an 
affidavit  must  be  made  (e)  of  the  sealing  of  the  lease, 


(a)  Appendix,  No.  8.  Noy.  133.    Sed  vide  Hopkins's  case, 

(b)  2  Sell.  Prac.  131.    Appendix,  Cro.  Car.  165.    Gardiner  ».  Nor- 
Tsos.  5  and  6.  man,  Cro.  Jac.  617. 

(c)  Wilsou  v.   Rich,    1  Yelv.   I  (d)   Ex  parte  Beauchamp   and 
S.  C.  1  Brown,  134.    Plomer  v.  Burt.  Barn.  177.  B.  N.  P.  96. 
Ilockhead,  2  Brown,  248.     S.  C.  (e)  Appendix,  No.  9. 


202  OF    THE    ANCIENT    PRACTICE. 

ouster  of  the  plaintiff,  &c. ;  and  upon  this  affidavit  a 
motion  is  made  for  judgment  against  the  defendant, 
and  unless  he  appears  and  pleads,  judgment  will  be 
signed  against  him,  upon  moving  the  court,  as  in  a 
common  ejectment,  (a) 

In  the  Common  Pleas,  this  affidavit  and  motion  are 
unnecessary,  and  instead  of  them  a  rule  to  plead  must 
be  given  on  the  first  day  of  term,  as  in  other  actions, 
and  if  there  be  no  appearance  and  plea  at  the  expira- 
tion of  the  rule,  judgment  may  be  signed,  (b) 

It  is  immaterial,  as  far  as  the  forms  of  sealing  the 
lease,  &c.  are  concerned,  whether  the  action  be  com- 
menced in  a  superior,  or  inferior  court ;  but  the  sub- 
sequent proceedings  in  inferior  courts  must  of  course 
depend  upon  the  general  practice  in  them  in  other 
actions,  and  cannot  form  a  part  of  this  treatise.  How 
far  it  may  even  be  necessary  to  give  the  tenant  in 
possession  notice  of  the  claimant's  proceedings,  in  an 
ejectment  brought  in  an  inferior  court,  may  appear 
doubtful,  when  it  is  remembered,  that  such  notice 
was  only  requisite  in  the  superior  courts,  in  conse- 
quence of  a  rule  made  for  that  particular  purpose;  (c) 
but  it  certainly  is  more  prudent  to  conform  to  the  ge- 
neral practice  in  this  respect,  and  the  notice  need  not 
to  be  given  until  after  the  entry,  and  execution  of  the 
lease,  (d) 

The  defendant  is  entitled  to  remove  an  ejectment 

(«)  Smartley  v.  Henden,  1  Salk.         (c)  Ante,  13. 
255.  2  Sell.  Prac.  131.  (<f)  1  Lill.  Pr.  Reg.  675. 

(6)  2  Sell.  Prac.  131. 


OF    THE    ANCIENT    PRACTICE.  *203 

from  an  inferior  to  a  superior  court,  either  by  writ  of 
certiorari,  (a)  or  of  habeas  corpus ;  (b)  and  when 
removed,  the  tenant  in  possession  is  entitled  to  the 
same  privilege  of  confessing  lease,  entry,  and  ouster, 
and  defending  the  action,  as  if  the  plaintiff  had 
originally  declared  in  the  superior  court,  (c)  The 
superior  court  also  will  not  grant  a  procedendo 
when  a  cause  has  been  so  removed,  if  there  be  reason 
for  believing  that  an  impartial  trial  cannot  be  had 
in  the  inferior  court,  or  upon  other  special  grounds ; 
and  it  is  to  be  inferred  from  the  reasoning  of  the 
judges  in  the  only  modern  case  upon  the  subject, 
that  a  writ  of  certiorari  is  a  matter  of  course,  and 
that  a  procedendo  will  in  no  case  be  granted,  (d} 

When  the  lands  lie  partly  within,  and  partly  with- 
out, the  jurisdiction  of  the  inferior  court,  the  defend- 
ant cannot  plead  above  the  jurisdiction  of  such  in- 
ferior court,  because  the  demise  is  transitory,  and 
may  be  tried  anywhere,  (e) 

As  the  plaintiff,  in  the  ancient  practice,  is  a  person 
actually  in  existence,  his  death  would  of  course  abate 
the  action,  according  to  the  general  rules  of  law  ;  but 
as  the  courts  look  upon  the  lessor  of  the  plaintiff  to 
be  the  person  concerned  in  interest,  they  will  not 
suffer  him  to  be  deprived  of  his  remedy,  by  such  an 
event.  If,  therefore,  there  be  any  one  of  the  same 
name  with  the  plaintiff,  he  will  be  presumed  to  have 

(a)  Doe  d.  Sadler  v.  Dring,  1  B.  (c)  Gilb.  Eject.  37. 

&  C.  253.  (rf)  Patterson  d.  Gradridge  v. 

(6)  Highmore  v.  Barlow,  Barn.  Eades,  3  B.  &  C.  550. 

421.  Allen  v.  Foreman,  1  Sid. 3 13.  (<)  Hall  u.  Hughs,  2  Keb.  69. 


204          OP  THE  ANCIENT  PRACTICE. 

been  the  person ;  and  it  has  also  been  held  to  be  a 
contempt  of  the  Court,  to  assign  for  error  the  nominal 
plaintiff's  death,  (a) 

In  like  manner,  before  the  introduction  of  the 
modern  practice,  it  was  said,  that  if  the  plaintiff  re- 
leased to  one  of  the  tenants  in  possession,  who  had 
been  made  defendant,  such  release  would  be  a  good 
bar,  because  the  plaintiff  could  not  recover  against 
his  own  release,  since  he  was  the  plaintiff  upon  the 
record ;  but  the  Courts  considered  such  a  release  as  a 
contempt,  and  it  does  not  appear  that  a  plea  of  this 
nature  ever  occurred  in  practice.  (£) 

The  casual  ejector  is  also  in  the  ancient  practice  a 
real  person,  but  the  court  will  not  allow  him  to  con- 
fess judgment;  and  where,  upon  proceedings  on  a 
vacant  possession,  the  casual  ejector  gave  a  warrant 
of  attorney  for  this  purpose,  the  Court  set  the  judg- 
ment aside,  (c) 

Where  an  action  of  ejectment,  and  an  action  of  as- 
sault and  battery,  were  joined  in  the  same  writ,  after 
verdict  it  was  moved  in  arrest  of  judgment,  because 
it  was  without  precedent ;  but  the  Court  seemed  to 
think  the  misjoinder  cured  by  the  verdict,  (d) 

(a)  Addison  v.  Sir  John  Otway,  v.  Brewer,  4  M.  &  S.  300. 

1  Mod.  250 — 52.    Moore  v.  Good-  (c)  Hooper  v.  Dale,  Stran.  531. 

right,  Stran.  899.  (d)  Bird  v.  Snell,   Hob.  249 ;  et 

(ft)  Peto  v.  Checy,  2  Brown,  128.  vide  Gilb.  Eject.  52. 
Anon.  Salk.  260.   Vide  Doe  d.  Byne 


CHAPTER  VII. 

Of  the  Declaration  in  the  Modern  Action  of  Eject- 
ment,  and  Notice  to  Appear. 

THE  proceedings  in  the  modern  action  of  ejectment 
being  founded  in  fiction,  and  regulated  altogether 
by  the  courts  of  common  law,  a  system  of  practice 
has  gradually  been  formed,  adapted  to  the  uses  of 
the  particular  remedy,  but  for  the  most  part  inde- 
pendent of  the  general  practical  regulations  in  other 
actions.  The  singularity  of  the  modern  practice  has 
indeed,  occasioned  it  to  be  denominated  a  string  of 
legal  fictions ;  and  the  remedy  itself  has  frequently 
been  called  a  child  and  creature  of  the  court. 

To  enable  a  party  claiming  title  to  lands,  to  take 
advantage  of  the  modern  method  of  bringing  an  eject- 
ment, it  is  necessary,  as  has  been  already  observed,  (a) 
that  a  person  should  be  in  possession  of  the  premises 
in  question ;  that  is  to  say,  that  they  should  not  be 
vacated  and  altogether  deserted ;  (6)  or  at  least  (sup- 
posing them  to  be  so  deserted)  that  the  residence  of 

(a)  Ante,  199.  Jones  </.  Griffiths  v.  Marsh,  4  T.  R. 

(6)  Savage  v.  Dent,  Stran.  1064.     464. 


206  OF    THE    DECLARATION. 

the  last  tenant  be  not  unknown  to  the  claimant,  (a) 
This  arises  from  a  particular  regulation  of  the  modern 
practice,  which  requires  an  affidavit  of  the  service  of 
a  declaration  in  ejectment  upon  the  tenant  in  posses- 
sion, before  judgment  can  be  obtained  against  the 
casual  ejector ;  and  as  this  service  cannot  of  course 
take  place,  when  a  tenant  does  not  exist,  the  neces- 
sary affidavit  cannot  then  be  made,  but  the  claimant  is 
compelled  to  resort  to  the  ancient  practice. 

With  this  single  exception,  however,  a  claimant  in 
ejectment  may  always  proceed,  in  the  superior  courts, 
by  the  modern  method. 

The  suit  is  commenced  by  the  delivery  of  the  de- 
claration against  the  casual  ejector,  to  the  tenant 
in  possession  ;  for,  as  the  plaintiff  and  defendant  in 
the  action,  are  only  fictitious  persons,  the  suing  out 
of  a  writ  would  be  an  useless  form.  This  declara- 
tion is,  in  fact,  in  itself  a  kind  of  writ,  or  process  ; 
and  is  the  only  means  by  which  the  party  in  posses- 
sion is  informed  of  the  claim  set  up  by  the  lessor  and 
required  to  appear  and  defend  his  title,  (b) 

• 

The  declaration,  when  the  proceedings  are  in  the 
King's  Bench,  may  be  framed  to  answer  either  to  an 
action  commenced  by  bill,  or  by  original,  but  the 


(a)  Exceptions  to  this  general  rule  so  far  considered  a  process  of  the 
are  created,  in  particular  cases,  by  Court,  that  the  Court  will  punish  as 
the  provisions  of  the  statutes  4  Geo.  a  contempt  any  improper  conduct 
II.  c  28;  11  Geo.  II.  c.  19.  Vide  of  the  tenant  at  the  time  of  its  de- 
ante,  163.  175.  livery.  Rex  v.  Unitt,  Stran.  567. 

(6)  A  declaration  in  ejectment  is 


OP  ENTITLING    THE   DECLARATION. 

latter  is  the  preferable  and  most  common  method; 
because  the  action  is  then  considered  by  the  Court  as 
though  it  actually  had  been  commenced  by  original, 
and  no  writ  of  error  can  be  brought  thereon  except 
in  Parliament.  In  the  Common  Pleas,  the  declara- 
tion is,  of  coarse,  always  framed  as  if  the  proceedings 
were  by  original,  (a) 

The  declaration  should  regularly  (except  in  the 
cases  mentioned  in  the  stat.  1  W.  IV.  c.  70.  s.  36) 
be  entitled  of  the  term  immediately  preceding  the  va- 
cation in  which  it  is  delivered  ;  but  if  it  be  not  entitled 
of  any  term,  or  of  a  wrong  term,  it  will  be  immaterial 
provided  the  tenant  has  sufficient  notice  given  him 
therein  to  appear  to  the  action.  Thus  declarations 
have  been  upheld  entitled  Michaelmas  term,  54  G. 
III.,  instead  of  55  G.  HI.;  (b)  Trinityterrn,  56G.IIL, 
instead  of  55  G.  III.;  (c)  Hilary  instead  of  Michael- 
mas term,  (c?)  and  Michaelmas  instead  of  Easter 
term  ;  (e)  the  notices  to  appear  being  correct,  and  the 
declarations  delivered  at  the  proper  times  ;  and  where 
the  declaration  was  delivered  before  the  essoign  day 
of  Hilary  term,  and  the  notice  at  its  foot  was  dated 
January  1,  1818,  and  was  to  appear  within  the  four 
6rst  days  of  the  next  term,  it  was  held  sufficiently 
certain,  although  not  entitled  at  all. 


When  the  title  of  the  lessor  of  the  plaintiff  ac- 

(o)  Appendix,  Nos.  12.  14.  15.  (d)  Anon.  2  Chitty,  172. 

(6)  Goodtitle  d.  Ranger  v.  Roe,  2  (e)  Anon.  2  Chitty,  173. 

Chitty,  172  .  (/)  Goodtitle  d.  Price  v.  Badtitle, 

(c)    Doe  v.  Greaves,  2  Chitty,  H.  T.  1818.  K.  B.,  MS. 
172. 


208  OP    ENTITLING    THE    DECLARATION. 

crues  after  the  essoign  day  of  an  issuable  term,  and 
the  ejectment  is  founded  on  stat.  1  W.  IV.  c.  70.  s. 
36,  the  declaration  against  the  casual  ejector  must  be 
specially  entitled  of  the  day  next  after  the  day  of  the 
demise  in  such  declaration,  whether  the  same  shall  be 
in  term  or  vacation  ;  but  in  all  other  cases  the  de- 
claration against  the  casual  ejector  may  be  entitled  of 
a  term  anterior  to  the  day  of  the  demise.  This  is 
strikingly  dissimilar  from  the  practice  in  all  other 
actions.  The  demise  stated  in  the  declaration,  is  the 
title  upon  which  the  plaintiff  is  supposed  to  enter,  and 
the  ouster  the  supposed  wrong  for  which  the  action  is 
brought.  The  plaintiff  has  consequently  no  cause  of 
action  antecedently  to  the  day  of  the  ouster;  which 
must  be  subsequent  to  the  day  of  the  demise,  and  ac- 
cording to  the  general  rules  of  pleading,  could  not 
entitle  his  declaration  anterior  to  that  time.  But  the 
casual  ejector  being  a  nominal  person,  cannot  take 
advantage  of  the  objection ;  and  if  the  tenant  appear, 
and  apply  to  be  admitted  a  defendant  instead  of  the 
casual  ejector,  he  will  be  compelled  by  the  consent 
rule  to  accept  a  declaration  entitled  of  a  subsequent 
term.  Therefore,  if  the  demise  be  laid  in  the  vaca- 
tion time,  and  the  declaration  against  the  casual 
ejector  be  entitled  of  the  preceding  term,  it  will  be 
sufficient ;  because,  if  the  party  in  possession  de- 
fend the  action,  the  declaration  against  him  (as  will  be 
explained  hereafter)  will  be  entitled  of  the  subsequent 
term;  and  if  he  leave  the  suit  undefended,  judgment 
will  be  taken  out  against  the  casual  ejector,  (a) 


(a)  Imp.  K.  B.  642.     1  Lil.  Prac.      Vent.  174. 
Reg.  680.     Tunstall  v.   Brend,   2 


OP    THE    DEMISE.  209 

The  venue  in  ejectment  is  local,  and  confined  to 
the  county  in  which  the  lands  are  situated,  (a) 

The  demise  declared  upon  by  the  plaintiff,  in  the 
modern  practice,  is  fictitious  only ;  but  still  it  must 
be  consistent  with  the  title  of  his  lessor ;  that  is  to 
say,  such  a  demise  must  be  supposed  to  be  made,  as 
would,  if  actually  made,  have  transferred  the  right  of 
possession  to  the  lessee.  Thus,  if  there  be  several 
lessors,  and  a  joint  demise  by  them  all  be  alleged, 
such  a  title  must  be  shown  at  the  trial,  as  would  en- 
able each  of  them  to  demise  the  whole ;  because  if 
any  one  of  the  lessors  have  not  a  legal  interest  in  the 
whole  premises,  he  cannot  in  law  be  said  to  demise 
them.  As,  where  A.  was  tenant  for  life,  and  B.  had 
the  remainder  in  fee,  and  they  made  a  lease  to  C., 
and  declared  upon  the  lease  as  a  joint  demise,  it  was 
held  bad  $  because,  during  J.'s  life,  it  was  the  lease 
of  A.,  and  the  confirmation  of  B.t  and  after  the  death 
of  A.,  it  was  the  lease  of  B.,  and  the  confirmation  of 
A.,  but  not  a  joint  demise,  (b} 

Joint  tenants,  or  parceners,  have  a  sufficient  in- 
terest in  the  lands  held  in  joint  tenancy,  or  parcenery, 
to  entitle  them  to  make  a  joint  demise  of  the  whole 
premises,  but  tenants  in  common  have  not :  and  the 
reason  for  this  difference  seems  to  be,  that  tenants  in 
common  have  several  and  distinct  titles  and  estates, 
independent  of  each  other,  so  as  to  render  the  free- 
hold several  also  ;  whilst  joint  tenants  and  parceners 

(a)  Anon.  6  Mod.  222.  Mostyn  (V)  King  t>.  Bery,  Poph.  57. 
v.  Fabrigas,  Cowp.  161.  176.  Treport's  case,  6  Co.  75,  (6). 

P 


210  OP    THE    DEMISE. 

are  seized  per  my  et  per  tout,  derive  by  one  and  the 
same  title,  have  a  joint  possession,  and  must  join  in 
any  action  for  an  injury  thereto ;  so  that  each  of  them 
may  properly  be  said  to  demise  the  whole,  (a) 

It  is  not,  however,  compulsory  upon  joint  tenants, 
or  parceners,  to  allege  a  joint  demise  ;  for  if  a  joint 
tenant,  or  parcener,  bring  an  ejectment  without  join- 
ing his  companion  in  the  demise,  it  is  considered  as 
a  severance  of  the  tenancy,  and  he  will  be  allowed  to 
recover  his  separate  moiety  of  the  land.  And  if  all 
the  joint  tenants,  or  parceners,  join  in  the  action,  but 
declare  upon  separate  demises  by  each,  it  is  held  that 
they  may  recover  the  whole  premises  ;  because,  by  the 
several  demises,  the  plaintiff  has  the  entire  interest 
in  the  whole  subject  matter,  although  the  joint  te- 
nancy is  severed  by  the  separate  letting.  (6) 

When  two,  or  more,  tenants  in  common  are  lessors 
of  the  plaintiff,  a  separate  demise  must  be  laid  by 
each ;  (c)  or  they  must  join  in  a  lease  to  a  third  per- 
son, and  state  the  demise  to  the  plaintiff  to  have  been 
made  by  their  lessee.  The  first  is  the  most  usual 
mode  of  proceeding,  and  the  declaration  need  not 
state  the  several  demises  to  be  of  the  several  shares 
belonging  to  the  several  tenants  respectively;  but 


(a)  Moore  v.  Fursden,  1  Show.  (6)  Doe  d.    Gill  v.  Pearson,   6 

342.    Millenerv.  Robinson,  Moore,  East.  173.     Roe  d.  Raper  v.  Lons- 

682.     Boner  v.  Juner,  Ld.  Raym.  dale,  12  East.  39.     Doe  d.  Marsack 

726.     Mantle  v.  Wellington,  Cro.  v.  Read,  12  East.  57.     Doe  d.  Lul- 

Jao.  166.    Morris  v.  Barry,  1  Wils.  ham  v.  Fenn,  3  Campb.  190. 

1.      Heatherly  d.  Worthington   v,  (c)  App.  No.  14,  15. 
Weston,  2  Wils.  232. 


OF   THE    DEMISE.  211 

eacli  demise  may  be  alleged  generally  to  be  of  the 
whole  premises  demanded  ;  for  under  a  demise  of  the 
whole  an  undivided  moiety  may  be  recovered,  (a) 

When  any  doubt  exists  as  to  the  party  in  whom 
the  legal  title  is  vested,  it  is  usual  to  declare  upon 
several  distinct  demises  by  the  several  persons  con- 
cerned in  interest,  (b)  and  the  claimants  will  not  then 
be  confined  at  the  trial  to  one  particular  demise,  but 
will  be  allowed  to  resort  to  any  included  in  the  de- 
claration, under  which  they  may  be  able  to  prove  a 
title  to  the  premises.  Difficulties  of  this  nature  fre- 
quently occur  when  trustees  are  lessors  of  the  plaintiff; 
and  it  is  always  advisable  to  lay  separate  demises  by 
the  trustees,  and  cestui  que  trust,  unless  the  eifect  of 
the  statute  of  uses  upon  the  trust  is  most  clear  and 
indisputable.  But  application  should  in  strictness 
be  first  made  to  such  trustees  for  permission  to  make 
use  of  their  names  ;  and  where  demises  are  inserted 
in  the  names  of  any  parties  without  their  authority, 
the  Court  on  motion  will  order  such  demises  to  be 
struck  out  of  the  declaration,  (c)  unless  the  justice  of 
the  case  requires  their  insertion,  and  a  sufficient  in- 
demnity is  given ;  and  they  will  also  interfere  to  set 
aside  proceedings  after  verdict  under  similar  circum- 
stances, if  the  application  be  bond  fide,  and  the  affi- 
davit on  which  it  is  grounded  distinctly  and  unequi- 
vocally show  the  want  of  such  authority,  (d)  But 
where  a  bankrupt  laid  a  demise  by  his  assignees 

(a)  Doe  d.  Bryant  v.  Wippel,  1      Chitty,  171. 

Esp.  330.  (rf)  Doe  d.  Hammcck  v.  Fellis,  9 

(fr)  App.  No.  14,  15.  Chitty  170. 

(c)  Doe  d.   Shepherd  v.  Roe,  2 


'2V2  OF    THE    DEMISE. 

without  their  permission  (they  having  given  upon 
him  the  property  in  the  premises)  and  obtained  judg- 
ment and  execution  thereupon,  the  court  refused  to 
set  the  proceedings  aside  at  the  instance  of  the  de- 
fendant in  the  ejectment)  notwithstanding  an  affidavit 
from  one  of  the  assignees  that  he  knew  nothing  of  the 
premises  in  question;  considering  the  application 
a  mere  contrivance  for  defeating  the  action,  (a) 

The  day,  on  which  the  demise  is  stated  to  have  been 
made,  is  so  far  material,  that  it  must  be  subsequent 
to  the  time  when  the  claimant's  right  of  entry  accrues; 
for  if  the  lessor  have  not  a  right  to  enter,  he  cannot 
have  a  right  to  demise  the  lands,  and  consequently  the 
plaintiff  must  be  nonsuited  at  the  trial,  for  his  lessor 
cannot  be  supposed  to  have  made  an  illegal  demise,  (b) 
It  is  usual,  however,  to  lay  the  demise  as  far  back  as 
the  lessor's  title  will  admit ;  because  the  judgment  in 
ejectment  is  conclusive  evidence  as  to  the  title  of  the 
lessor,  for  all  the  mesne  profits  accruing  subsequently 
to  the  day  of  the  demise  ;  (c)  and  when  there  are  any 
doubts  as  to  the  period  when  the  lessor's  title  accrued, 
it  is  customary  to  state  different  demises  by  him  on 
different  days. 

In  an  ejectment  on  the  demise  of  an  heir  by  de- 
scent, the  demise  was  laid  on  the  day  the  ancestor 
died,  and  held  to  be  well  enough ;  for  the  ancestor 
might  die  at  five  o'clock,  the  heir  enter  at  six,  and 


(a)    Doe  d.  Vine  v.   Figgins,  3      way,  v.  Herbert,  4  T.  R.  680. 
Taunt.  440,  (c)  Aislin  v.  Parkin,  Burr.  665. 

(6)  Ante,  11.    Goodtitle  d.  Gallo- 


OP   THE    DEMISE.  213 

make  a  lease  at  seven,  which  would  be  a  good  lease.(a) 
It  seems  also,  according  to  Lord  Hardwicke,  that  a 
posthumous  son,  taking  lands  under  the  provisions 
of  10  and  11  Wm.  III.  c.  16,  would  be  entitled 
to  lay  the  demise,  from  the  day  of  his  father's 
death,  (b) 

It  has  already  been  observed,  that  in  an  ejectment, 
by  the  surrenderee  of  copyhold  premises,  the  demise 
may  be  laid  against  all  persons,  but  the  lord,  on  a  day 
between  the  times  of  surrender  and  admittance,  pro- 
vided the  surrenderee  be  admitted  before  trial,  (c) 

But  this  doctrine  of  relation  does  not  apply  where 
the  assignees  of  a  bankrupt  are  the  lessors  of  the 
plaintiff,  so  as  to  enable  them  to  recover  the  freehold 
lands  of  the  bankrupt,  upon  a  demise  subsequently 
to  the  act  of  bankruptcy,  but  before  the  date  of  the 
bargain  and  sale  by  the  commissioners ;  for  the  free- 
hold remains  in  the  bankrupt,  though  not  beneficially, 
until  taken  out  by  him  of  the  conveyance,  (d) 

When  an  ejectment  is  founded  on  stat.  4.  Geo.  II. 
c.  28.  s.  2.,  the  day  of  the  demise  must  be  subsequently 
to  the  last  day  on  which  the  rent  is  payable  to  save 
the  forfeiture,  and  prior  to  the  day  on  which  the 
declaration  is  delivered,  (e) 


(a)  Roe   d.  Wrangham  ».  Her-  (d)  Doe  d.  Esdaile  v.  Mitchell,  'Z 
sey,  3  Wils.  274.  M.&  S.  446.  tt  vide.  Doe  d.  What- 

(b)  B.  N.  P.  105.  ley  v.  Telling,  2  East.  256. 

(c)  Ante,  64.   Doe  d.  Benniugtou  (e)  Doe  d.  Lawrence  v.  Shawcross, 
w.  Hall,  16  East.  208.  3  B.  &  C.  752.  Ante,  162. 


214  OF    THE    DEMISE. 

When  a  fine  with  proclamations  has  been  levied, 
and  an  actual  entry  is  necessary  to  avoid  it,  the  demise 
must  be  laid  on  a  day  subsequent  to  the  entry,  (a) 

Tenancies  at  will  scarcely  exist  at  the  present  day ; 
but  when  an  ejectment  is  brought  against  a  tenant  at 
will,  the  demise  must  be  laid  subsequently  to  the  time 
when  possession  is  demanded,  that  is  to  say,  subse- 
quently to  the  determination  of  the  will,  (b) 

When  an  ejectment  is  brought  against  a  tenant 
from  year  to  year,  the  commencement  of  whose  te- 
nancy is  unknown,  and  no  presumptive  proof  of  the 
time  of  such  commencement  can  be  obtained,  (c)  the 
only  sure  method  of  avoiding  a  nonsuit  is  to  give  a 
general  notice  to  quit  "  at  the  end  and  expiration  of 
the  current  year  of  the  tenancy  thereof,  which  shall 
expire  next  after  the  end  of  one  half  year  from  the 
date  of  the  notice,"  and  to  lay  the  demise  eighteen 
months  after  the  delivery  of  such  notice. 

The  length  of  the  term,  during  which  the  premises 
are  alleged  in  the  declaration  to  have  been  demised 
to  the  plaintiff,  is  wholly  unconnected  with  the  title 
of  the  claimant,  and  may  be  of  longer  duration  than 
his  interest  in  the  land,  (d)  A  contrary  doctrine  was 
once  indeed  maintained,  upon  the  principle,  that  by 
a  judgment  in  ejectment  the  plaintiff  recovers  his 
term  mentioned  in  the  declaration,  and,  therefore,  if 

(a)  Berington  d.  Dormer  v.  Park-       (c)  Vide  post,  Chap.  10. 
hurst,  And.  125.    S.  C.  Stran.  1086.       (d)   Doe   d.  Shore '  v.  Porter,  3 

S.  C.  Willes.  327.  S.  C.  13  East.  489.  T.  R.  13. 

(6)  Ante,  106. 


OP    THE    DEMISE.  215 

the  term  declared  on  be  of  greater  duration  than  the 
lessor's  title,  as,  for  instance,  if  the  lessor  be  entitled 
to  the  lands  for  three  years  only,  and  the  plaintiff  de- 
clare on  a  demise  for  five,  he  would  wrongfully  hold 
the  lands  for  the  last  two  years,  (a)  But  this  doctrine 
has  since  been  very  correctly  over-ruled  ;  because  if 
the  lessor  have  the  right  of  possession  but  for  a  month, 
and  make  a  lease  for  seven  years,  it  will  enure  to  his 
lessee  for  the  month  duly,  and  during  that  time  he 
will  be  entitled  to  the  possession;  and,  as  a  judgment 
in  ejectment  is  not  adrnitted_as  evidence  of  the  lessor's,  j 
title,  he  cannot  by  reason  of  it  be  enabled  to  keep 
possession  after  the  month  has  expired,  (b] 

Seven  years  is  the  term  usually  declared  upon  j 
and  the  only  direction  necessary  to  be  given  upon 
this  point  is,  that  the  term  be  of  a  length  sufficient 
to  admit  of  the  lessor's  recovering  possession  of  the 
land  before  its  expiration ;  although  the  courts  are 
now  very  liberal  in  permitting  lessors  to  amend  in 
this  respect,  as  will  be  stated  hereafter. 

It  was  for  some  time,  even  after  the  introduction 
of  the  modern  practice,  holden  necessary,  that  when 
an  ejectment  was  brought  by  a  corporation  aggregate, 
they  should  execute  a  power  of  attorney,  authorizing 
some  person  to  enter  and  make  a  lease  on  the  lands ; 
that  such  person  accordingly  should  enter,  and  make 
a  lease  under  seal ;  and  that  the  declaration  should 
state  the  demise  to  be  by  deed,  (c)  These  forms,  it 

(fl)  Roe  v.  Williamson,  '2  Lev.  140.   1  Mod.  10. 
S.  C.  3  Keb.  490.  (c)  Gilb.  Eject.  35. 

(/•)  B.  N.  P.  106.  Clerke  v.  Rowell, 


216  OP    THE    DEMISE. 

seems,  were  deemed  necessary  upon  the  principle, 
that  a  corporation  aggregate  cannot  perform  any  cor- 
porate act  otherwise  than  under  the  corporation  seal, 
nor  make  an  attorney,  or  bailiff,  but  by  deed.  They 
could  not,  it  was  therefore  said,  enter  and  demise 
upon  the  land  in  person,  as  natural  persons  could, 
nor  substitute  an  attorney  to  enter  into  a  rule  for 
their  costs ;  nor  would  an  attachment  go  against  them 
for  disobedience  to  that  rule.  They  therefore  made 
an  actual  lease  upon  the  lands,  and  then  the  attorney 
proceeded  in  the  common  method.  But,  since  the 
principles  of  this  action  have  been  more  clearly  un- 
derstood, none  of  these  peculiarities  are  necessary; 
and  the  demise  may  now  be  laid  in  the  general  way, 
without  any  power  of  attorney  being  made,  any  lease 
being  signed,  (a)  or  any  statement  of  such  a  lease 
being  introduced  into  the  declaration.  One  case  only 
is  indeed  to  be  found  upon  the  latter  point,  and  in 
that  the  question  arose  after  verdict;  (fr)  but  from 
the  reasoning  then  used  by  the  court,  no  doubt  can 
be  entertained  that  the  principle  would  be  extended 
to  every  stage  of  the  action ;  and  that  a  plaintiff  in 
ejectment  would  never  be  non  suited  for  the  omis- 
sion of  such  a  statement,  (c)  The  demise  is  still 
certainly  sometimes  stated  to  be  by  deed;  and  it 
is  immaterial  whether  it  be  so  or  not,  as,  notwith- 


(a)  Furley  d.  Mayor  of  Canter-  form,  and  many  objections  were 

bury  v.  Wood,  1  Esp.  198.  taken  upon  other  points  by  the  dc- 

(6)  Partridge  v.  Ball,  Ld  Raym.  fendant's  counsel,  and  overruled ; 

136.  S.  C.  Carth.  390.  but  they  never  adverted  to  the  cir- 

(c)  In  the  case  of  Doe  d.  Dean  cumstance  of  the  demise  not  being 

and  Chapter  of  Rochester  v.  Pierce,  stated  to  be  by  deed.  Kent,  (Sum. 

the  demise  was  in  the  common  Ass.  1809,  MS.) 


OF    THE    DEMISE. 

standing  the  statement,  no  proof  of  the  deed  is  re- 
quired, (a) 

If  a  corporation  be  aggregate  of  many,  they  may 
set  forth  the  demise  in  the  declaration,  without  men- 
tioning the  Christian  names  of  those  who  constitute 
the  corporation ;  but  if  the  corporation  be  sole,  as  if 
the  demise  be  by  a  bishop,  the  name  of  baptism  must 
be  inserted.  The  reason  of  this  is,  that  in  the  first 
case  the  name  solely  consists  of  its  character,  but  in 
the  last  in  its  person;  therefore  there  cannot  be  a 
sufficient  specification  of  that  person  without  men- 
tioning his  name.  (£) 

In  a  case  where  the  demise  was  laid  to  be  by  the 
Mayor,  &c.  of  the  borough  town  of  Maldon,  and  the 
name  of  the  Corporation  as  appeared  from  the  charter 
was  the  Mayor,  &c.  of  M  aldon,  it  was  held  to  be  no 
variance,  it  appearing  from  the  charter,  which  was  in 
evidence,  that  Maldon  was  a  borough  town,  (c] 

In  the  case  of  Swadling  v.  Piers,  (d)  it  was  ruled, 
that  in  an  ejectment  for  tithes,  the  plaintiff  must  de- 
clare on  a  demise  by  deed,  because  tithes  cannot  pass 
but  by  deed ;  but  this  decision  has  since  been  over- 
ruled, and  the  statement  of  a  deed  seems  even  in  this 
case  to  be  no  longer  necessary,  (e) 

It  seems  also  to  have  been  holden,  that  on  a  de- 

(a)  Furley  d.  Mayor  of  Canter-  v.  Miller,  1  B.&A.699. 

bury  o.  Wood,  1  Esp.  198.  (</)  Cro.  Jac.  613. 

(6)  Carter  v.  Cromwell,  Sav.  128,  (e)  Partridge  v.  Ball,  Ld.  Kayin. 

cited  Dyer,  86.  136.  S.C.Carth.390. 

(c)  Doe  d.  Mayor,  &c.  of  Maldon 


218  OF    THE    DEMISE. 

inise  by  the  master  and  fellows  of  a  college,  dean  and 
chapter  of  a  cathedral,  master  or  guardian  of  an  hos- 
pital, parson,  vicar,  or  other  ecclesiastical  person,  of 
any  lands,  &c.  the  declaration  should  state  that  there 
was  a  rent  reserved,  &c.  pursuant  to  the  statute  13 
Eliz.  c.  10;  but  this  form  cannot  now  be  necessary,  (a) 

A  similar  doctrine  was  once  applied  to  the  case  of 
an  infant ;  (6)  but  it  has  been  long  settled,  that  an 
infant  may  make  a  lease  without  rent  to  try  his  title,  (c) 
When,  however,  a  demise  is  laid  by  an  infant,  his 
father  or  guardian  should  be  made  plaintiff,  instead 
of  a  nominal  person,  in  order  to  save  the  trouble  and 
expense  of  giving  security  for  the  costs,  which  he 
would  otherwise  be  compelled  to  do.  (cT) 

It  is  not  necessary  to  state,  in  the  declaration ,  that 
the  premises  are  situated  in  a  parish,  hamlet,  &c.  it 
is  sufficient  to  mention  the  name  of  the  place  in  which 
they  are  situate,  without  also  describing  it  by  the 
name  of  its  ecclesiastical  or  civil  division,  (e)  And  in 
one  case,  where  even  the  name  of  the  place  was 
omitted  when  describing  the  premises,  but  such  name 
could  be  collected  from  other  parts  of  the  declaration, 
the  court  held  the  description  to  be  sufficiently  cer- 
tain.^) When,  however,  the  premises  are  described 


(a)  Carter  v.  Cromwell,  Sav.  129.  (e)    Goodtitle    d.    Bembridge  v. 

(6)  Lill.  Prac.  Reg.  673.  Walker,  4  Taunt.  671. 

(c)  Zoucht;.  Parsons,  Burr.  1794.  (f)  Goodright  d.  Smallwood  v. 

1806.  Strother,  Black.  706.  The  declara- 

(</)Nokev.  Windham,  Stran.694.  tion  in  this  case  stated,  that  one 

Anon.  1.  Wils.  130.  M.  S.  -"at  Haswcll  in  the  county  of 


OF   THE     DEMISE.  219 

as  lying  in  a  parish,  hamlet,  &c.  such  description 
must  be  a  correct  one,  and  an  uncertain  or  improper 
description  will  be  fatal.  Thus,  in  an  ejectment  for 
lauds,  "in  the  parishes  of  A.  and  B.  or  one  of  them," 
the  judgment  was  arrested  for  the  uncertainty,  al- 
though it  appeared  that  the  parties  had  originally 
been  one,  and  lately  been  divided  by  an  act  of  par- 
liament, and  that  the  boundaries  were  not  settled,  (a) 
But  if  the  words  ( '  or  one  of  them"  had  been  omitted, 
it  seems  the  description  would  have  been  sufficient, 
though  all  the  lands  were  contained  in  one  of  the 
parishes.  (6) 

Where  the  premises  were  described  as  situate  t(in 
the  united  parishes  of  St.  Giles  in  the  Fields,  and  St. 
George  Bloomsbury,  and  it  appeared  that  those  two 
parishes  were  united  together  by  act  of  parliament, 


B."  demised  to  plaintiff  two  mes-  was  "  precisely  of  the  tenth  part 
suages,  from  which  messuages  de-  of  an  entire  thing  ;"  though  it  was 
fondant  at  Haswell  aforesaid  ousted  said  by  the  Court,  that  if  the  eject- 
plaintiff;  and  the  court  considered,  ment  had  been  of  an  acre  of  land 
that  the  statement  of  the  ouster  in  D.  and  I'.,  and  it  appeared  that 
being  at  Haswell,  amounted  to  a  the  whole  acre  was  in  D.,  it  would 
sufficient  certainty  that  the  lands  be  well  enough.  The  reason  for 
demised  lay  at  Haswell.  this  diversity  seems  to  be,  that  the 

(a)  Goodright  v.  Fawson,  7  Mod.  acre  being  the  whole  thing  de- 

457.  S.  C.  Barn.  184.  Cottingham  manded,  the  description  is  suffi- 

v.  King,  Burr.  624,  and  the  au-  ciently  certain,  although  it  all  be 

thorities  there  cited.  in  one  parish ;  whereas,  when  only 

(6)  Goodwin  v.  Blackmail,  3  Lev.  a  tenth  part  is  demanded,  it  is  un- 

334.  In  this  case  the  ejectment  certain  which  tenth  part  is  meant, 

was  "  for  a  tenth  part  of  a  mes-  and,  therefore,  as  no  tenth  part 

suage  in  D.  and  F."  and  the  whole  answers  the  description,  the  sheriff 

messuage  appearing  in  evidence  to  could  not  give  execution  ;  tamen 

lay  in  D.,  and  no  part  in  F.,  the  de-  qtttere  et  vide  Burr.  330,  et  ante, 

scription  was  held  ill,  because  it  22. 


220  OP    THE    DEMISE. 

for  the  maintaining  of  their  poor,  but  for  no  other 
purpose,  the  variance  was  held  fatal ;  for  by  the  de_ 
scription,  the  parishes  were  stated  as  if  they  were 
completely  blended  together,  and  formed  only  one 
parish,  when,  in  truth,  they  remained  entirely  dis- 
tinct, except  as  to  the  maintenance  of  the  poor,  (a) 
But  where  the  premises  were  described  as  situate  in 
the  parish  of  West  Putworth  and  Bradworthy,  and 
it  appeared  that  West  Putworth  and  Bradworthy 
were  separate  parishes,  the  Court  held  the  description 
to  be  sufficiently  certain,  rejecting  the  word  parish 
as  surplusage,  and  considering  the  demise  as  of  lands 
in  West  Putworth  and  Bradworthy.  (b)  And  where 
the  premises  were  laid  to  be  at  the  parish  ofFarnkam, 
and  were  proved  at  the  trial  to  be  in  the  parish  of 
Farnham  Royal,  it  was  held  not  to  be  a  fatal  va- 
riance, unless  it  could  be  proved  that  there  were  two 
Farnhams.  (c)  Where  also  the  premises  were  de- 
scribed as  being  in  the  parish  of  Westbury,  and  it  was 
proved  that  there  were  two  parishes  of  Westbury, 
viz.  Westbury  on  Trym,  and  Westbury  on  Severn, 
the  description  was  holden  to  be  sufficiently  certain.(oT) 

When  the  premises  lie  in  different  parishes,  it  has 
been  usual  to  enumerate  the  whole  as  lying  in  one 
parish,  and  to  repeat  the  description  of  them  as  lying 
in  the  other  parish ;  but  it  seems  sufficient  to  enume- 
rate them  once  only,  describing  them  as  lying  in  the 

(a)  Goodtitle  v.  Pinsent  d.  Lam-         (c)  Doe  d.   Toilet  v.  Salter,  13 
miman,  2  Campb.  '274.     S.  C.  6     East.  9. 

Esp.  128.  (d)  Doe  d.  James  v.  Harris,  5 

(b)  Goodtitle   d.   Brembridge  v.      M.&  8.326. 
Walter,  4  Taunt.  671. 


OF    THE    ENTRY. 

parishes   of  A.  and  B.,   or  in   A.  and   B.  respec- 
tively, (a) 

The  number  of  messuages,  acres,  &c.  mentioned  in 
the  demise,  need  not  correspond  with  the  number  to 
which  the  lessor  claims  title.  He  may  declare  for  an 
indefinite  number,  as  a  hundred  messuages,  a  thousand 
acres  of  arable  land,  &c. ;  and  care  should  be  taken 
that  the  number  specified  in  the  demise  be  larger  than 
the  number  claimed ;  because,  although  if  he  declare 
for  more  than  he  is  entitled  to,  he  may  recover  less, 
the  reverse  will  not  hold,  (b)  Upon  the  same  prin- 
ciple, if  the  lessor  of  the  plaintiff  be  entitled  to  a 
moiety,  or  other  part,  of  an  entire  thing,  as  the  half, 
or  third  part,  of  a  house,  he  may  recover  such  moiety, 
or  third  part,  on  a  demand  for  the  whole,  (c) 

The  entry  of  the  plaintiff  on  the  land  need  not  be 
alleged  in  the  declaration,  to  be  made  on  any  par- 
ticular day,  although  in  the  precedents  it  is  usually  so 
stated.  It  is  sufficient  if  it  be  declared  generally, 
that  the  plaintiff  entered  by  virtue  of  the  demise  :  nor 
does  it  seem  to  have  been  required,  even  in  the  an- 
cient practice,  to  be  more  explicit,  because,  as  the 
plaintiff  entered  by  virtue  of  the  lease,  he  must  neces- 

(a)  2  Chitty,  Prec.  395.  bounds  be  described  in  the  declara- 

(i)  Denn  d.    Burgis  v.  Purvis,  tion,  and  the  jury  find  the  defend- 

Burr.   326.     Guy  v.   Rand,  Cro.  ant  guilty  in  half  an  acre  of  land, 

Eliz.  13.  the  verdict  will  be  bad ;  because  of 

(f)  Ablett  v.  Skinner,  1  Siderf.  the  uncertainty  of  which  part,  or 

229.    Goodwin  v.  Blackman,  3  Lev.  moiety,  the  plaintiff  is  to  have  ex- 

334.    In  an  ancient  case  it  is  said,  ecution.      ^Winkworth    v.    Mann, 

that  if  an  ejectment  be  brought  for  Yelv.  114,  tatnen  qutrre,  et  vide  ante, 

an  acre  of  land,  and  the  metes  and  chap.  2.) 


222  OF    THE    OUSTER. 

sarily  have  entered  after  his  title  accrued ;  though  it 
was  then  said,  that  it  might  have  been  otherwise,  if 
the  declaration  had  been  pr&textu  cujus  he  entered, 
for  the  plaintiff  might  enter  unlawfully,  or  before  his 
time,  under  pretence  of  the  lease,  (a) 

The  day  upon  which  the  ouster  of  the  plaintiff,  by 
the  casual  ejector,  is  alleged  to  have  taken  place, 
should  regularly  be  after  the  commencement  of  the 
supposed  lease  and  entry.  This  is  requisite,  in  order 
to  support  the  consistency  of  the  fiction ;  because,  as 
the  title  of  the  plaintiff  is  supposed  to  arise  from  the 
lease  mentioned  in  the  declaration,  it  would  be  absurd 
for  him  to  complain  of  an  injury  to  his  possession  be- 
fore, by  his  own  showing,  he  had  any  claim  to  be  pos- 
sessed. But  it  does  not  seem  absolutely  necessary 
that  this  consistency  should  be  preserved  ;  for,  as  the 
words  "  afterwards,  to  wit,"  are  always  used  imme- 
diately before  mentioning  the  day  of  the  ouster,  it  is 
most  probable,  upon  the  principles  by  which  eject- 
ments are  at  present  regulated,  that  the  Courts  would 
in  all  cases  consider  an  ouster  laid  previously  to  the 
day  of  the  entry,  "  as  impossible  and  repugnant," 
and  as  such  reject  it.  (b)  Even  when  the  old  practice 
prevailed,  and  the  true  principles  of  the  remedy  were 
so  little  understood,  every  possible  intention  was  made 
in  favour  of  the  plaintiff,  when  an  ouster  was  alleged 
anterior  to  the  time  of  the  demise.  Thus,  on  a  de- 
mise from  the  1st  of  February,  1752,  to  hold  from  the 
8th  of  January  before,  and  that  afterwards,  namely, 

(«)  Wakeley  v.  Warren,  2  Roll.         (ft)  Adams  v.  Goose,  Cro.  Jac.  96. 
Rep. 466.  SeduiWeDouglasr;.  Shank,      B.  N.  P.  106. 
Cro.  Eliz.  766. 


OP   THE    OUSTER.  223 

on  the  28th  of  January,  1752,  defendant  ejected  him, 
and  it  was  insisted  for  the  defendants,  that  the  plain- 
tiff's title  did  not  commence  until  the  1st  of  February, 
and  therefore  that  the  ouster  was  laid  too  soon ;  the 
Court  held,  that  the  day  of  the  ouster,  being  laid  un- 
der a  scilicet,  was  surplusage,  and  that  "afterwards" 
should  relate  to  the  time  of  making  the  lease,  and 
then  all  would  be  well  enough,  («)  In  like  manner, 
on  a  demise  from  the  6th  of  May,  anno  septimo,  by 
virtue  of  which  plaintiff  entered,  and  was  possessed 
until  afterwards,  on  the  18th  of  the  same  month, 
anno  sexto  supradicto,  defendant  ejected  him,  the 
Court  held  the  declaration  sufficient;  because  the 
ouster  was  laid  to  be  on  the  18th  of  the  same  month, 
which  it  could  not  be  if  it  were  done  in  the  sixth 
year,  and  rejected  the  word  sexto  as  inconsistent  and 
void,  (b)  Upon  the  same  principle,  where  the  demise 
was  on  the  sixth  of  September,  2  Jac.,  by  virtue  of 
which  the  plaintiff  held,  until  afterwards,  (to  wit) 
on  the  fourth  day  of  September,  2  Jac.,  defendant 
ejected  him,  the  declaration  was  holclen  good,  and 
the  words  under  the  scilicet  rejected  as  surplusage,  (c) 

(a)  B.  N.  P.  106.  upon     the     distinctions     formerly 

(6)  Davis  v.  Purdy,  Yelv.  182.  taken,  as  to  the  time  of  the  com- 

(c)  Adams    v.  Goose,  Cro.    96.  mencement   of    a    demise,   when 

Some  old  ejectment  cases  are  to  be  stated  in  the  lease  to  be  "  from  the 

found  in  the  books,  (Goodgain  v.  date,"  and  when  from  "  the  day  of 

Wakefield,    1    Sid.  7.     Evans   v.  the  date  "of  the  lease;  but,  since  the 

Croker,  3  Mod.  198.    Stephens  v.  judgment  in  Pughv.  Duke  of  Leeds 

Croker,    Comb.    83.     Higham   v.  (Cowp.  714,)  by  which  it  has  been 

Cooke,  4   Leon.   144.    Osborn  v.  determined,  that  these  expressions 

Rider,  Cro.  Jac.  135.    Llewelyn  v.  shall    be    construed    indifferently, 

Williams,  Cro.  Jac.  258.    Clayton's  either  inclusively  or  exclusively,    so 

case,  5  Co.  1 .)  in  which  the  ousters  as  to  give  effect  to  die  deed,  these 

were  laid  on  the  same  days  as  the  cases  can  no  longer  be  authorities, 
demises,  and  which  were  decided 


224  OF   AMENDING 

From  the  case  of  Merrell  v.  Smith,  (a)  it  does  not 
seem  necessary  to  allege  any  particular  day  for  the 
ouster,  provided  it  appears  from  the  declaration,  to  be 
subsequently  to  the  commencement  of  the  term,  and 
prior  to  the  bringing  of  the  action ;  but  in  the  pre- 
cedents a  day  certain  is  always  laid,  and  it  is  the 
better  method  to  mention  a  particular  day. 

With  respect  to  the  ouster  in  an  ejectment  for 
tithes,  it  is  said  in  the  case  of  Worrall  v.  Harper,  (&) 
that  where  the  ouster  was  set  forth  to  have  been 
made  in  the  month  of  May,  it  was  held  ill,  because 
there  were  no  tithes  to  be  ousted  of  at  that  season  of 
the  year ;  but  this  doctrine  is  controverted  by  Gilbert, 
C.  B.,  on  the  principle  that  the  law  does  not  judicially 
take  notice  of  the  time  when  tithes  arise,  (c) 

OF  AMENDING  THE  DECLARATION. 

It  was  formerly  the  practice  both  in  the  King's 
Bench  and  the  Common  Pleas,  not  to  permit  the  de- 
claration in  ejectment  to  be  amended,  until  the  land- 
lord, or  tenant,  had  been  made  defendant  instead  of 
the  casual  ejector ;  and,  consequently,  if  the  defects 
were  such  as  to  prevent  the  Courts  from  granting  the 
common  rule  for  judgment  against  the  casual  ejector, 
the  plaintiffs  lessor  was  compelled  to  discontinue  the 
action,  and  resort  to  a  new  ejectment,  (d)  But  this 
practice  is  inconsistent  with  the  present  mode  of  re- 
gulating the  remedy  ;  and  the  Court  would,  it  is  pre- 

(a)  Cro.  Jac.  311.    Jenk.  341.  (d)  Roe  d.  Stephenson  t>.  Doe, 

(6)  1  Roll.  Rep.  65.  Barn.  186. 

(r)  Gilb.  Eject.  67. 


OP    AMENDING    THE    DECLARATION.  225 

sumed,  now  permit  the  lessor  to  amend  his  declara- 
tion before  appearance,  provided  such  amendment 
did  no  injustice  to  the  tenant.  Indeed,  where  by 
mistake,  the  name  of  the  tenant  in  possession  was  in- 
serted at  the  commencement  of  the  declaration,  instead 
of  that  of  the  casual  ejector,  (the  declaration  and  notice 
to  appear  being  in  other  respects  regular,)  the  court 
granted  the  rule  for  judgment  upon  the  common  affi- 
davit of  service,  and  suggested  that  if  the  tenant  did 
not  appear  to  the  action,  an  application  should  be 
made  to  amend  the  declaration,  (a) 

It  is  also  said  that,  even  after  appearance,  the  de- 
claration can  be  amended  in  form  only,  and  not  in 
matter  of  substance  ;  but  it  is  now  difficult  to  point 
out  what  errors  would  be  deemed  substance,  and  not 
amendable.  Under  the  strict  rules,  by  which  the 
action  was  formerly  conducted,  the  demise,  the  length 
of  the  term,  the  time  of  the  ouster,  &cc.,  (6)  were  all 
considered  as  matters  of  substance ;  (c)  and  so  un- 
bending were  the  courts  upon  these  points,  that  if  the 
term  expired,  pending  the  action,  by  injunction  from 
the  Court  of  Chancery  at  the  defendant's  application, 
or  by  the  delay  of  the  Court,  in  which  the  action  was 

(a)  Doe  d.  Cobbey  v.  Roe,  K.  B.  any  other  matter     of    substance, 

T.  T.  1816.  MS.  though  the  second  declaration  were 

(i)  Formerly  when  a  person  de-  correct,  he  could  not  recover ;  be- 

clared  in  ejectment  in  the  Common  cause  the  declaration  on  the  impar- 

Pleas,  it  was  the  course  of  the  Court,  lance  roll  was  the  material  one  on 

that   after   imparlance  he   should  which  the  action  was  grounded. — 

make  a  second   declaration;    and,  (Merrell  v.  Smiih,  Cro.  Jac.  311. — 

when  this  practice  prevailed,  if  the  Jenk.  341.) 

plaintiff,  by  his    first  declaration,          (c)  Doe  d.  Hardman  v.  Pilking- 

had  laid  the  ouster  before  the  com-  ton,  Burr.  2447,  and  the  cases  there 

mencement  of  his  term,  or  omitted  cited. 


226  OF    AMENDING    THE    DECLARATION. 

brought,  in  giving  judgment,  the  lessor  was  obliged 
to  resort  to  a  new  ejectment,  (a) 

A  more  liberal  principle  has,  however,  of  late  years 
been  adopted;  and  the  demise,  term,  &c,  are  now 
most  correctly  considered  as  formal  only,  and  may  be 
amended  by  the  Court,  or  by  a  Judge  at  chambers, 
or  at  the  sittings,  or  on  the  circuit,  until  the  cause  is 
called  on  for  trial,  and  the  jury  sworn ;  the  judges 
acting  uniformly  on  this  sensible  rule,  that  if  the  de- 
fendant has  relied  solely  upon  the  formal  defence, 
and  will  surrender  up  possession  upon  the  amend- 
ment being  made,  he  shall  be  paid  the  whole 
of  his  costs,  but  if  he  refuses  to  relinquish  the  pos- 
session and  will  hazard  a  trial  notwithstanding  the 
amendment,  he  is  entitled  to  the  costs  of  the  amend- 
ment only.  (6)  Thus  in  an  ejectment  to  recover 
lands,  forfeited  by  the  levying  of  a  fine,  where  the  de- 
mise was  laid  anterior  to  the  time  of  the  entry  to  avoid 
the  fine,  and  the  suit  was  staid,  by  injunction  in  the 
Court  of  Chancery,  for  more  than  five  years  after  the 
fine  was  levied,  so  that  the  lessor  was  not  in  time  to 
make  a  second  entry,  or  bring  a  second  ejectment, 
the  Court  permitted  him  to  change  the  day  of  the 
demise,  to  a  day  subsequent  to  the  day  of  the  entry  : 
Lord  Mansfield  observing,  that  the  demise  was  a 
mere  matter  of  form,  and  did  not  exist,  (c)  So  like- 
wise the  Court  permitted  the  declaration  to  be 

(a)  Anon.   Salk.    257.     S.   C.  G  (6)  Doe  d.  Lewis  v.  Coles,    I  R. 

Mod.  130.    Scrape  v.  Rhodes,  Earn.  &   M.  380.     Vide   I    Chitty.   535, 

8.     Driver  v.  Scratton,  Barn.    17.  note  (a). 

Ke&worth    v.    Thomas,  And.  208.  (c)  Roe  d.  Hardman  v.  Pilking- 

Thrustout    v.   Gray,    Cas.    Temp.  ton,  Burr.  2447. 
Hard.  165. 


OP    AMENDING   THE    DECLARATION.  227 

amended  by  the  insertion  of  a  new  count  on  a  new  de- 
mise, after  three  terms  had  elapsed,  and  the  roll  had 
been  made  up  and  carried  in.  (a)  So  also  after  is- 
sue joined,  by  altering  the  parish,  from  the  parish  of 
G,  to  the  parish  of  St.  John  in  G.  (b)  And  where  an 
ejectment  was  brought  upon  a  forfeiture,  and  the 
demise  was  laid  on  a  day  anterior  to  the  time  when 
the  forfeiture  was  committed,  the  court  permitted  the 
lessor  of  the  plaintiff  to  amend  (upon  payment  of 
costs)  after  the  record  was  made  up,  and  the  cause  set 
down  for  trial,  (c)  But  this  permission  is  not  to  be 
extended  to  the  injury  of  the  defendant,  and  therefore 
the  court  will  not  suffer  the  day  of  the  demise  to  be 
altered  to  a  day  subsequent  to  the  day  of  the  delivery 
of  the  declaration,  for  this  would  be  to  give  the 
lessor  of  the  plaintiff  a  right  of  action  which  did  not 
subsist  at  the  time  of  the  commencement  of  his 
suit,  (d) 

The   term  also  has  been  enlarged    after   its    ex- 


(a)  Doe  d.  Beaumont  v.  Armit-  March,  1813,  and  the  declaration 

age.  2  Chitty,  302.  delivered  on  the  29th  of  Oct.  1813. 

(6)  Doe  d.  O'Connell  v.  Porch. —  The  cause  was  set  down  for  trial,  at 

Coram  Heath,  J.  Trin.  Vac.  18  li.  the  first  sittings  in  Middlesex,  in 

MS.  Hilary  Term,  1814;  but  stood  over 

(c)  Doe  d.  Itumford  v.  Miller.  K.  until  the  second  sittings.    And  two 

B.    II.  T.  1814.  MS.— This   case  days  before  the  second  sittings,   a 

seems  to  carry  the  principle  of  al-  rule  to  shew  cause  why  the  day  of 

lowing  an  amendment  of  the  demise  the  demise  should  not  be  altered  to 

in  an  ejectment  to  its  utmost  limit,  the  80th  of  Sept.  was  obtained  ; 

The  ejectment  was  brought  upon  a  and  made  absolute  immediately  be- 

covenant  to  finish   certain  build-  fore  the  rising  of  the  court  on  the 

ings  in  a  workmanlike  manner  be-  morning  of  the  second  sittings, 

fore  the  29*A  of  Sept.  1813.    The  (d)  Doe  d.  Foxlow  v.  Jeffries,  K. 

demise  was  laid  on  the  26th  day  of  B.  M.  T.  1814.  MS. 

Q2 


228  OF    AMENDING    THE    DECLARATION. 

piration,  upon  payment  of  costs,  although  the  issue 
was  made  up,  the  special  jury  struck,  and  the  cause 
gone  down  to  trial,  before  the  mistake  was  discovered  ; 
the  Court  considering,  that  it  was  a  plain  mistake  in 
the  declaration,  and  might  be  amended  by  the  writ, 
which  spoke  of  a  term  not  yet  expired,  (a)  An  en- 
largement of  the  term  was  also  permitted,  by  Lord 
Mansfield,  in  a  case  where  a  judgment  in  eject- 
ment in  Ireland  had  been  affirmed,  upon  a  writ  of 
error,  in  the  King's  Bench  in  England,  but,  from 
various  delays,  the  term  in  the  declaration  had  ex- 
pired before  the  plaintiff's  lessor  could  obtain  pos- 
session, (b) 

When  the  old  principles  of  the  action  prevailed, 
and  the  term  was  considered  substance,  and  not 
amendable,  the  plaintiff  was  not  nonsuited  if  the 
term  expired  before  the  trial,  but  was  permitted  to 
proceed  for  his  damages  and  costs,  though  not  for 
the  recovery  of  his  land ;  for  the  right  to  damages 
for  the  ouster  remained,  although  the  right  to  posses- 
sion upon  the  lease  was  determined.  It  is  not  pro- 
bable at  the  present  day,  that  opportunity  will  be 
offered  to  raise  a  point  of  this  nature,  but  if  the  lessor 
of  the  plaintiff  should  act  so  negligently  as  to  proceed 
to  trial  upon  an  expired  term,  there  seems  no  reason 
why  the  above-mentioned  principle  should  not  be  ap- 
plicable to  the  modern  practice,  (c) 

In  the  case  of  Goodtitle  v.  Meymott,  the  court  re- 


(«)  Roe  d.  Lee  ?;.  Ellis,  Blk.  940.  (c)  Capel  v.  Saltonstall,  3  Mod. 

(/>)  Vicars  v.IIeydon,  Cowp.841.      249. 


OP  THE  NOTICE  TO  APPEAR.         229 

fused  to  amend  a  declaration,  in  which  "  the  said 
James,"  instead  of  u  the  said  John/'  was  said  to 
enter  by  virtue  of  the  demise ;  and  a  case  was  cited, 
by  Wright,  J.,  in  which  the  premises  were  laid  to  be 
in  Twickenham,  or  Isleworth,  "  or  one  of  them,"  and 
the  Court  refused  to  let  the  plaintiff  amend,  by  strik- 
ing out  the  disjunctive  words ;  but  it  seems  that 
amendments  have  since  been  permitted,  both  in  the 
parcels  and  the  names,  (a) 

OF  THE  NOTICE  TO  APPEAR.  (6) 

The  name  of  the  tenant  in  possession  must  be  pre- 
fixed to  the  notice ;  and,  when  the  possession  of  the 
disputed  premises  is  divided  amongst  several,  it  is 
usual  to  prefix  the  names  of  all  the  tenants,  to  each 
separate  declaration ;  although  it  does  not  seem  ne- 
cessary to  prefix  more  than  the  name  of  the  indivi- 
dual tenant,  upon  whom  the  particular  declaration  is 
served,  (c)  The  notice  must  contain  the  Christian  and 
surnames  of  the  tenant  or  tenants  in  possession. 
A  notice  addressed  "To  Mrs.  Plicks"  has  been  held 
insufficient;  (d)  as  also  a  notice  addressed  "  To  the 
personal  representatives  of  A.  B.y"  (the  deceased  te- 
nant.) (e)  But  where  the  tenant's  name  was  thus  ab- 
breviated "  John  B.  Jones,n  instead  of  John  Benja- 
min Jones"  the  notice  was  held  good.  (/*) 

(a)  2  Sell.  Prac.  143.  (e)  Doe  d.  Governors  of  St.  Mar- 

(b)  Appendix,  No.  13.  garet's  Hospital  v.  Roe,  1  B.  Moore 

(c)  Roe  d.  Burlton  v.  Roe,  7  T.  113.  Doe  d.  Paul  v.  Hurst,    1  Chit- 
li.  477.  ty,  162. 

(d)  Doe  v.  Roe,  1  Chitty.  573.  (/)  Anon.  1  Cbitty,  573,  note  (a). 


"230  OF    THE    NOTICE    TO    APPEAR. 

It  seems  also  that  the  notice  will  be  sufficient,  al- 
though the  address  to  the  tenant  be  altogether 
omitted,  provided  it  be  stated  in  the  affidavit  of  ser- 
vice, that  the  tenant  was  duly  served  with  a  copy  of 
the  declaration  before  the  essoign  day,  and  acknow- 
ledged such  service,  (a) 

The  notice  must  require  the  tenant  to  appear,  and 
apply  to  the  Court  to  be  admitted  defendant  instead 
of  the  casual  ejector,  within  a  certain  time  after  the 
declaration  is  delivered ;  and  when  the  provisions  of 
the  stat.  1  Geo.  IV.  c.  87,  s.  1,  are  resorted  to,  the 
notice  must  also  inform  the  tenant  that  he  will  be  re- 
quired to  enter  into  a  recognizance  with  two  sufficient 
sureties,  in  such  reasonable  sum  as  the  Court  shall 
direct,  to  pay  the  costs  and  damages  which  may  be 
recovered  in  the  action. 

The  time  when  the  notice  should  require  the  tenant 
to  appear  and  apply  to  be  made  defendant,  is  regu- 
lated by  the  locality  of  the  premises ;  unless  the  pro- 
ceedings are  regulated  by  stat.  1  Wm.  IV.  c.  70,  s. 
36,  when  the  notice  must  invariably  require  the  te- 
nant to  appear  within  ten  days  after  the  delivery  of 
the  declaration. 

In  other  cases  when  the  premises  are  situated  in 
London,  or  Middlesex,  the  notice  should  be  for  the 
tenant  to  appear  "  on  the  first  day  "  (not  the  essoign 
day,)  (b)  or  "within  the  four  first  days"  of  the  term 

(a)  Doe  d.  Pearson  v.  Roe,  5  B.  (6)  Holdfast  v.  Freeman,  Stran. 
Moore,  73.  1049. 


OF  THE  NOTICE  TO  APPEAR.         231 

next  after  the  delivery  of  the  declaration ;  and  this 
mode  of  expression  should  be  strictly  observed ;  for 
although  where  the  notice  was  to  appear  "  in  the  be- 
ginning of  the  term,-"  the  Court  granted  a  rule  for 
judgment  against  the  casual  ejector,  (a)  yet  where  the 
notice  was  to  appear  "  on  the  morrow  of  the  Holy 
Trinity,"  thejudgment  against  the  casual  ejector  was 
set  aside,  upon  the  principle,  that  the  notice  was  de- 
signed to  inform  the  lay  gents,  of  the  time  of  appear- 
ing, and  should  therefore  be  expressed  in  such  terms 
as  they  might  understand,  (b)  It  will,  however,  be 
sufficient  if  the  notice  be  to  appear  generally  of  the 
term ;  but  the  tenant  will  then  have  the  whole  term  to 
appear  in. 

When  the  premises  are  situated  in  any  other  county 
than  London  or  Middlesex,  the  notice  should  re- 
gularly require  the  tenant  to  appear  generally  in  the 
term,  next  ensuing  the  delivery  of  the  declaration  ; 
but  it  will  be  sufficient  when  the  proceedings  are  in 
the  Common  Pleas,  if  it  require  him  to  appear  in  the 
issuable  term,  next  ensuing  such  delivery,  although  a 
uon-issuable  term  intervene.  Thus,  when  a  declara- 
tion is  entitled  of  Trinity  term,  and  delivered  during 
the  long  vacation,  the  notice  may  require  the  tenant 
to  appear  in  Hilary  term.(c) 

The  notice  usually  specifies  the  term  by  name,  in 
which  the  tenant  is  to  appear,  and  the  declaration 
should  regularly  be  entitled  of  the  term  preceding; 
but  where  a  declaration,  delivered  in  Hilary  vacation, 

(a)  Tredder  v.  Travis,  Earn  175.  (r)  Doc  d.  Clarke  v.  Roe,  4  Taunt. 

(6    Sel.  N.  P.  640.  T38. 


232          OF  THE  NOTICE  TO  APPEAR. 

was  entitled  of  Easter  Term,  and  the  notice  was  to 
appear  on  the  first  day  of  next  term,  the  Court 
granted  the  common  rule  for  judgment  against  the 
casual  ejector  during  Easter  term,  considering  that 
the  tenant  could  not  be  misled  by  the  wrong  title  to 
the  declaration,  so  as  to  imagine  he  had  until  Trinity 
term  to  appear,  inasmuch  as  the  declaration  was 
delivered,  and  the  notice  dated  on  a  day  antecedent 
to  the  essoign-day  of  Easter  Term,  (a)  Where  also 
the  notice  had  been  given  by  mistake  for  Hilary 
instead  of  Trinity  term,  and  the  tenant  was  after- 
wards informed  of  the  mistake,  a  rule  nisi  was 
granted ;  (b)  and  in  a  subsequent  case,  upon  a  similar 
error,  Holroyd,  J.  granted  the  common  rule,  (c) 
Where  also  the  declaration  was  by  original,  and  the 
notice  was  as  if  by  bill,  omitting  "  wheresoever,  &c." 
the  variation  was  held  immaterial.  (</)  But  where  the 
notice  was  to  appear  in  eight  days  of  St.  Hilary, 
instead  of  Hilary  terra  generally,  the  Court  refused 
the  rule ;  (e}  as  they  also  did  where  the  declaration 
was  entitled  in  the  King's  Bench,  and  the  notice  was 
to  appear  in  the  Common  Pleas.  (/) 

The  declaration  must  be  delivered  before  the  es- 
soign-day of  the  term,  in  which  the  notice  is  given  to 
appear,  (y) 

The  notice  should  regularly  be  subscribed  with  the 

(a)  Anon.  K.  B.  E.  T.  1817,  MS.  (e)  Lackland  d.  Bowling  v.  Bad- 

(6)  Anon.  2  Chitty,  171.  land,  8  B.  Moore,  79. 

(c)  Doe  v.  Greaves,  2  Chitty,  (/)  Doe  d.  Lewis  v.  Roe,  K.  B. 

172.  M.T.  1821.  MS. 

(d)  Doe  d.  Thomas  v.  Roe,  2  (g)  Doe  d.  Bird  v.  Roe,  Barns. 

Chitty,  171.  172. 


OF  THE  NOTICE  TO  APPEAR.        233 

name  of  the  casual  ejector,  and  formerly  proceedings 
have  been  set  aside  for  an  irregular  signature ;  but  it 
is  now  sufficient  if  the  notice  be  subscribed  with  the 
name  of  the  lessor  of  the  plaintiff,  or  of  any  other 
person,  (a) 

One  case  only  is  extant,  in  which  an  amendment 
has  been  made,  by  rule  of  court,  in  the  notice  sub- 
scribed to  the  declaration ;  although  it  cannot  be 
doubted  that  any  amendments  would  now  be  allowed, 
which  the  justice  of  the  case  might  require.  In  the 
case  above  alluded  to,  the  lands  were  situated  in 
Devonshire,  and  the  notice  was  for  the  tenant  to  ap- 
pear in  Michaelmas  term,  when,  according  to  the 
practice  in  country  causes  at  that  time,  it  should  have 
been  to  appear  in  an  issuable  term,  and  the  affidavit 
stated,  that  if  the  lessor  were  not  permitted  to  amend, 
he  would  be  barred,  by  the  statute  of  limitations,  from 
bringing  a  new  ejectment :  the  Court  permitted  the 
lessor  to  amend  upon  payment  of  costs,  (b) 

(a)  Peaceable  v.  Troublesome,  should  have  obtained  of  giving  no- 
Barn.  172.  Hazlewood  d.  Price  v.  tices  to  tenants  to  appear  in  non- 
Thatcher,  3  T.  R.  351.  Goodtitle  d.  issuable  as  well  as  issuable  terms, 
Duke  of  Norfolk  v.  Notitle,  5  B.  &  and  that  such  change  of  practice 
A.  849.]  should  not  have  been  noticed  in 

(6)  Doe  d.  Bass  v.  Roe,  7  T.  R.  any  of  the  reported  cases. 
469.  It  is  singular,  that  a  practice 


234 


CHAPTER  VIII. 

Of  the  Service  of  the  Declaration,  and  Proceedings 
to  Judgment  against  the  casual  Ejector  when  no 
appearance. 

THE  declaration  in  ejectment  being  a  kind  of  pro- 
cess to  bring  the  party  interested  into  court,  its  de- 
livery to  the  tenant  resembles  the  service  of  a  writ, 
rather  than  the  delivery  of  a  declaration  ;  and,  as  it 
is  the  only  warning,  which  the  tenant  in  possession 
receives,  of  the  proceedings  of  the  claimant,  the 
courts  are  careful  that  a  proper  delivery  be  made, 
and  that  the  nature  and  contents  of  the  declaration  be 
explained  at  the  time,  to  the  party  to  whom  it  is 
delivered.  This  delivery  and  explanation  are  gene- 
rally termed  the  service  of  the  declaration  ;  and  our 
next  inquiry  will  be  directed  to  the  different  modes 
by  which  this  service  may  be  made. 

The  service  to  be  strictly  regular  should  be  made 
personally  upon  the  party  in  possession  of  the  pre- 
mises at  the  time  of  the  service,  or,  when  the  posses- 
sion is  divided  amongst  several,  upon  each  party  se- 
parately, (a)  When  the  ejectment  is  brought  by  a 
landlord  against  his  tenant,  and  the  tenant  has  under- 

(a)  B.  N.  P.  98. 


OF  THE  SERVICE  OF  THE  DECLARATION.    235 

let  the  premises,  the  same  rule  prevails,  and  the 
service  must  be  upon  the  under-tenant,  or  under- 
tenants if  more  than  one,  and  a  service  upon  the 
original  tenant  will  not  be  sufficient,  (a)  But  if  the 
service  is  upon  the  original  tenant,  and  he  appears 
and  pleads,  he  cannot  afterwards  release  himself 
from  the  action  upon  the  ground,  that  his  under- 
tenants, and  not  himself,  are  in  possession.  (£) 

When  personal  service  can  be  effected,  it  is  imma- 
terial whether  it  be  upon  the  premises  demised,  or 
elsewhere,  (c) 

It  frequently  however  happens,  from  the  wilful  or 
accidental  absence  of  the  tenant,  or  some  other  cir- 
cumstance, that  the  claimant  is  unable  to  serve  him 
personally :  the  declaration  is  then  delivered  to  one 
of  the  family,  nailed  to  the  door  of  the  house,  or  in 
some  other  manner  left  upon  the  demised  premises; 
and,  when  any  of  these  irregularities  happen,  the 
service  will  be  considered  good,  or  otherwise,  accord- 
ing to  the  particular  circumstances  of  the  case.  In  all 
these  cases,  the  facts  should  be  disclosed  in  the  affi- 
davit of  service,  and  mentioned  to  the  Court  on 
moving  for  judgment  against  the  casual  ejector;  and 
if  they  are  satisfied  that  the  tenant  has  had  notice 
of  the  declaration,  they  will  make  the  rule  absolute 
in  the  first  instance ;  but  otherwise,  they  will  grant  a 
rule  upon  the  tenant,  to  show  cause  why  the  service 
should  not,  under  the  special  circumstances,  be  suf- 

(a)  Doe  d.  Lord  Darlington  v.         (c)  Savage  v.  Dent,  Stran.  1064. 
Cock,  4  B.  &  C.  259.  Taylor  v.  Jefts,  11  Mod.  302. 

(b)  Roe  v.  Wiggs,  2  N.  11.  330. 


236    OF  THE  SERVICE  OF  THE  DECLARATION. 

ficient  and   direct  that  the   service   of  the  rule    on 
the  premises  shall  be  deemed  good  service. 

The  power  exercised  by  the  courts  in  this  respect 
is  altogether  discretionary ;  and  it  will  be  necessary 
to  enter  rather  largely  into  a  detail  of  the  cases,  in 
order  to  give  a  clear  idea  of  the  principles  upon 
which  they  have  been  decided. 

Service  of  the  declaration  upon  the  wife  of  the 
tenant  in  possession  upon  the  premises,  or  at  the 
husband's  house  elsewhere,  will  be  good  service,  (a) 
So  also,  if  the  affidavit  state  that  the  parties  were 
living  together  as  man  and  wife,  when  the  service  was 
made,  service  on  the  wife  any  where  will  be  good.  (£) 
But  the  mere  acknowledgment  of  the  wife,  that  she 
has  received  a  declaration,  and  given  it  to  her  hus- 
band, if  it  be  not  personally  served  upon  the  wife, 
will  not  be  good  service ;  (c)  nor  will  an  affidavit  be 
sufficient  which  states  the  service  to  be  upon  the  pre- 
mises on  a  woman,  representing  herself  to  be  the 
wife  of  the  tenant  in  possession,  if  it  does  not  also 
aver  the  defendant's  belief  of  the  fact,  (d) 

When  two  or  more  tenants  are  in  possession  of  the 
same  premises,  if  it  appear  from  the  affidavit  that  the 
parties  are  all  in  possession,  but  that  one  only  has 


(a)  Doerf.  Baddam  v.  Roe,  2  B.  (c)  Goodtitle  d.  Read  i\Badtitle, 

&  P.  65.     Goodright  d.  Jones  v.  1  B.  &   P.  384.  Et  vide  Anon.  2 

Thrustout,  Bik.  800.     Doe  d.  Mor-  Chitty,  182. 

land  v.  Bayliss,  6  T.  It.  765.  (d)   Doe  d.  Simmons  v.  Roe,    1 

(6)  Jenny  d.  Preston  v.  Cults,  1  Chitty,  228. 
N.  R.  308—10. 


OP  THE  SERVICE  OF  THE  DECLARATION.    237 

been  served  with  the  declaration,  the  Court  will  grant 
the  common  rule  against  the  party  served,  and  a 
rule  nisi  against  the  other  parties ;  but  if  the  affida- 
vit does  not  show  such  possession,  the  rule  will 
be  refused  against  all  but  those  actually  served,  (a) 

Service  upon  the  wife  of  one  of  two  joint  tenants 
will  not  bind  the  co-tenant,  (b) 

Service  of  the  declaration  upon  the  child,  or  ser- 
vant of  the  tenant,  will  be  sufficient  service,  pro- 
vided it  appears  from  the  affidavit,  that  the  decla- 
ration was  delivered  on  the  premises  before  the 
essoign-day  of  the  term,  and  that  the  tenant,  pre- 
viously to  such  essoign-day,  has  acknowleged  him- 
self to  have  received  such  oeclaration,  or  to  have 
known  of  the  service  thereof,  (c) 

Where  the  ejectment  was  brought  for  a  house, 
which  was  rented  by  the  churchwardens  and  over- 
seers of  the  parish,  for  the  purpose  of  accommodating 
•some  of  the  parish  poor,  a  service  of  the  declaration 
upon  the  churchwardens,  and  overseers,  was  held 
sufficient,  although  they  did  not  occupy  the  house, 
otherwise  than  by  placing  the  poor  in  it.  (d)  And 


(a)  Right  v.  Wrong,  2  Chitty,  175.  East.  441.     Doe  d.  Macdougall  v. 

Doe  d.  Field  v.  Roe,  2  Chitty,  174.  Roe,  4  B.  Moore,  20.    Doe  d.  Hal- 

Anon.  2  Chitty,  176.  Doe  d.  Brom-  sey  v.  Roe,  1  Chitty,  100.     Doe  d. 

ley  v.  Roe,   1  Chitty,  141.     Doed.  Tindall  v.  Roe,  2  Chitty,  180.  Right 

Elwood  v.  Roe,  3  B.  Moore,  578.  d.  Freeman  v.  Roe,  2  Chitty,  180. 

Doe  d.  Bailey  v.  Roe,  1  B.  &   P.  Doe  v.  Roe,  5  B.  &  C.  764. 

369.  (d)  Tupper  d.   Mercer    v.   Doe, 

(b}  Wood,  L.  &  T.  463.  Barnes,  181. 

(c)  Roe  d.  llainbrook  v.  Doe,  14 


238    OF  THE  SERVICE  OF  THE  DECLARATION. 

in  an  ejectment  for  a  chapel,  the  service  may  be  made 
on  the  chapel-wardens,  or  on  the  persons  to  whom 
the  keys  are  intrusted,  (a)  But  where  the  ejectment 
is  for  a  house,  service  upon  the  person,  having  the 
charge  of  the  keys  in  order  to  let  the  house,  will  not 
be  good  service ;  (b)  and  service  upon  a  person  ap- 
pointed by  the  Court  of  Chancery,  to  manage  an 
estate  for  an  infant,  although  the  estate  consisted  of 
a  large  wood,  of  which  no  tenant  was  in  possession, 
has  also  been  held  insufficient,  as  being  nothing  more 
than  a  service  on  a  gentleman's  bailiff,  (c) 

Where  the  premises  consisted  of  a  mansion,  and 
four  small  houses  in  a  yard,  surrounded  by  a  wall, 
through  which  was  a  door  to  them,  forming  the  only 
means  of  access,  in  one  of  which  small  houses  re- 
sided A.)  who  was  permitted  to  live  there  merely  to 
take  care  of  them  and  of  the  mansion-house,  and  the 
rest  of  the  messuages  were  vacant :  upon  motion,  that 
service  on  A.  might  be  deemed  good  service  under 
those  circumstances,  the  Court  refused  the  motion, 
and  recommended  the  plaintiff  to  affix  a  declaration 
on  the  empty  houses,  and  then  to  move  that  it  be 
deemed  good  service,  (d  ) 

In  the  preceding  cases  no  wilful  opposition  appears, 
on  the  part  of  the  tenant,  to  the  service  of  the  decla- 
ration ;  and  such  of  the  services  already  mentioned 
as  are  considered  good,  are  called  regular  services; 


(a)  Run.  Eject.  136.  title,  1  B.  &  P.  385. 

(6)  Anon.  12  Mod.  313.  (d  )  Wood,  L.  &  T.  466. 

(c)  Goodtitle  d.  Roberts  v.  Bad- 


OP  THE  SERVICE  OF  THE  DECLARATION.    239 

but  when  the  tenant  absconds,  or  does  any  act  which 
shows  a  resolution  not  to  receive  the  declaration,  the 
Court,  upon  affidavit  of  facts,  will  sometimes  allow 
that  to  be  good  service,  which  otherwise  would  be 
deemed  irregular. 

Thus,  a  tender  of  the  declaration,  and  reading 
the  notice  aloud,  although  the  tenant  refuse  to  receive 
it,  or  run  away  and  shut  the  doors,  or  threaten  with 
a  gun  to  shoot  the  person  serving  it,  if  he  should 
come  near ;  throwing  the  declaration  in  at  the  win- 
dow, sticking  it  against  the  door,  or  leaving  it  at  the 
house,  upon  the  servants  refusing  to  call  their  master, 
and  the  like,  have  upon  application  to  the  court  been 
holden  sufficient.  So  also  a  tender  of  the  declaration 
in  the  shop,  and  reading  the  notice  aloud  there  to  the 
wife,  when  the  tenant  refused  to  receive  the  declara- 
tion; delivering  it  to  the  niece  of  the  tenant,  she 
being  the  manager  of  the  house,  and  the  tenant 
having  absconded;  nailing  the  declaration  on  the 
barn-door  of  the  premises,  in  which  barn  the  tenant 
had  occasionally  slept,  there  being  no  dwelling-house 
on  the  premises,  and  the  tenant  not  to  be  found  at  his 
last  place  of  abode ;  have  respectively  been  considered 
good  and  sufficient  services,  (a) 

Where  the  tenant  resided  abroad,  and  carried  on 

(a)  Douglas  v.  ,  Stran.  575.  Barn.  188.    Fenn  d.  Hildyard  v. 

Suialley  t>.  Neale,  Barn.  173.  Hal-  Dean,  Barn.  192.  Sprightly  d.  Col- 
sal  v.  Wedgwood,  Barn.  174.  Doe  lins  v.  Dunch,  Burr.  1116.  Doe  d. 
d.  Dry  v.  Roe.  Barn.  178.  Farmer  Neale  v.  Roe,  2  Wils.  2C3.  Fenn  d. 
d.  Miles  v.  Thrustout,  Barn.  180.  Buckle  v.  Roe,  1  N.  R.  293.  Doe  d. 
Bagshaw  d.  Ashton  u.  Toogood,  Herveyr.  Roe,  2  Price,  112.  2  Chit- 
Barn.  185.  Short  d.  Elmes  u.  King,  ty's  cases.  Title,  Ejectment,  jwtim. 


240         OF    THE    SERVICE    OF    THE    DECLARATION. 

his  business  by  an  agent  residing  on  the  premises, 
and  the  service  was  by  delivering  the  declaration  in 
the  usual  way  to  the  agent,  and  affixing  a  copy  on 
the  premises,  the  Court  of  King's  Bench  held  the 
service  to  be  sufficient,  (a)  But  in  a  case  where  it 
appeared  that  the  tenant  resided  abroad  for  the  pur- 
pose of  avoiding  his  creditors,  and  had  declared  him- 
self afraid  to  return  to  England  unless  he  could  ob- 
tain a  letter  of  licence,  and  that  a  copy  of  the  declara- 
tion was  duly  served  on  the  premises  on  a  servant 
who  was  left  in  charge  thereof,  and  at  the  same  time 
another  copy  was  affixed  on  the  outer  door  of  the 
dwelling-house,  the  Court  of  Common  Pleas  refused 
the  rule  and  also  refused  a  rule  to  show  cause  why 
service  on  the  tenant's  solicitor  should  not  be  deemed 
good  service  ;  because  it  did  not  appear  by  the  affi- 
davits that  the  party  had  gone  abroad  to  avoid  the 
particular  process  in  this  action,  (b)  And  the  Court 
of  King's  Beneh  also  refused  a  rule,  where  the  affida- 
vit did  state,  in  addition  to  the  fact  that  the  party  was 
resident  in  France,  the  belief  of  the  party  making 
the  affidavit,  that  he  was  gone  there  for  the  purpose 
of  the  avoiding  the  service  of  the  declaration ;  but 
the  service  was  only  stated  to  be  upon  the  servant 
on  the  premises,  without  also  adding  that  a  copy  of 
the  declaration  was  affixed  to  them,  (c) 

Where   the  tenant  of  a  house  locked  it  up  and 


(a)  Doe  v.  Roe,  4  B.  &  A.  653.  213.      Doe     d.   Lowe    v.    Roc,   2 

(b)  Doe  d.  Fenwick  v.  Roe,  3  B.  Chitty,  177.     Doe  d.  Hele  v.  Roe, 
Moore,  576.  2  Chitty,  178. 

(c)  Doe  d.  Jones  v.  Roe,  1  Chitty 


OP    THE    DECLARATION.  241 

and  quitted  it,  and  the  landlord  three  months  afterwards 
fixed  a  copy  of  the  declaration  to  the  door,  it  was 
held  that  the  service  was  not  sufficient,  but  that 
the  landlord  should  have  treated  it  as  a  vacant  pos- 
session (a) 

In  a  case  where  the  tenant  in  possession  was  per- 
sonated, at  the  time  of  the  service,  by  another,  who 
accepted  the  service  in  the  tenant's  name,  the  Court 
granted  a  rule  to  show  cause,  why  this  should  not  be 
deemed  good  service  ;  and  that  leaving  a  copy  of  the 
rule  at  the  house,  with  some  person  there,  or,  if  no  one 
was  to  be  met  with,  affixing  it  to  the  door,  should  be 
good  service  of  such  rule.  And  this  rule  was  afterwards 
made  absolute,  upon  an  affidavit,  "  that  the  tenant 
was  either  not  at  home,  or  (if  at  home)  was  denied  ; 
and,  that  her  servant-maid  was  at  home,  but  could 
not  be  served ;  whereupon  a  copy  of  the  rule  was 
affixed  to  the  door  of  the  house ;"  and  moreover, 
u  that  at  a  subsequent  day,"  (upon  a  doubt  whether 
what  had  been  already  done  was  sufficient,)  u  the 
maid  being  at  home,  and  opening  the  window,  but 
refusing  to  open  the  door,  and  denying  that  her  mis- 
tress was  at  home,  another  copy  was  affixed  on  the 
door,  and  the  maid  was  told  the  effect  of  it ;  and 
another  copy  was  thrown  in  at  the  window,  and  the 
original  rule  was  shown  to  the  maid."  (£) 

In  a  case,  where  one  of  the  tenants  was  a  lunatic, 
and  one  C.  lived  with  her,  transacted  her  business, 
and  had  the  sole  conduct  thereof,  and  of  her  person, 

(a)  Doe  d.  Lord  Darlington   v.         (b)  Fcnn  d.  Tyrrell  v.  Denn,  Burr. 
Cock,  4  B.  &  C.  259.  1181. 


242  OF    THE    AFFIDAVIT    OF    SERVICE. 

but  would  not  permit  the  deponent  to  have  access  to 
her  in  order  to  serve  her  with  the  declaration,  where- 
upon he  delivered  it  to  the  said  C. ;  a  rule  was  granted 
that  the  lunatic,  and  C.,  should  both  show  cause,  why 
such  service  should  not  be  sufficient ;  and  the  service 
on  C.  was  held  to  be  good,  (a) 

Where  the  declaration  was  tendered  on  the  day 
before  the  essoign  day,  but  the  defendant's  servant 
said,  he  had  orders  not  to  receive  any  such  thing, 
whereupon  it  was  not  then  served,  but  was  left  at  the 
house  upon  the  day  following ;  the  Court  refused  the 
rule,  saying,  "  We  sometimes  make  that  service,  un- 
der particular  circumstances,  good,  which  otherwise 
would  have  been  imperfect ;  but  here  there  was  no 
service  on  the  proper  day,  and  we  cannot  antedate 
the  service."  (6) 

When  the  service  is  good  for  part,  and  bad  for  part, 
the  lessor  may  recover  those  premises  for  which  the 
service  is  good ;  but  if  he  proceed  for  all,  and  obtain 
possession  by  means  of  a  judgment  against  the  casual 
ejector,  the  Court  will  compel  him  to  make  restitution 
of  that  part,  for  which  the  service  was  bad.  (c) 

OF  THE  AFFIDAVIT  OF  SERVICE,  (d} 

When  the  service  of  the  declaration  is  made  in  the 
regular  way,  the  next  step  to  be  taken,  in  order  to  ob- 


(a)  Doe  d.  Wright  v^  Roe,  Barn.         (6)  Wood.  L.  &  T.  466. 
190.      Doe  d.   Lord  Aylesbury  v.         (c)  Ibid,  463.     Appendix,  No.  41. 
Roe,  2  Chitty,  183.  (d)  Appendix,  Nos.  16,  17, 18. 


OP    THE    AFFIDAVIT    OP   SERVICE. 

tain  judgment  against  the  casual  ejector,  is  to  make 
an  affidavit  of  such  service ;  which  affidavit  is  annexed 
to  the  declaration,  and  is  the  ground  upon  which  the 
rule  for  judgment  is  to  be  moved  for.  But,  when  the 
circumstances  of  the  case  are  special,  it  is  usual  to 
move,  in  the  first  instance,  for  a  rule  to  show  cause, 
why  the  service,  mentioned  in  the  affidavit,  should  not 
be  deemed  good  service ;  and  this  motion  may  be 
made,  either  before,  or  after  the  service  of  the  decla- 
ration ;  although,  if  the  lessor  be  aware  of  the  difficul- 
ties he  will  have  to  encounter,  it  is  better  to  make  an 
affidavit  of  the  circumstances,  which  are  likely  to 
happen,  and  move,  prior  to  the  service,  for  a  rule  to 
show  cause,  why  a  service  of  such  a  nature  should  not 
be  sufficient,  (a) 

The  affidavit  may  be  sworn  before  a  judge,  or  a 
commissioner,  and  should  regularly  be  made  by  the 
person  who  served  the  declaration ;  although  the  Court 
have  been  satisfied  with  the  affidavit  of  a  person,  who 
saw  the  declaration  served  upon,  and  heard  it  ex- 
plained to,  the  tenant  in  possession.  (6) 
» 

The  affidavit  must  be  entitled  with  the  name  of  the 
casual  ejector,  (c)  and  when  no  special  circumstances 
take  the  case  out  of  the  general  rule,  it  must  state 
that  the  declaration  was  delivered  to  the  tenant  in 
possession,  or  his  wife,  &c.  and  that  the  notice 
thereto  annexed,  was  read  and  explained,  at  the 


(a)    Methold    v.   Noright,     Blk.         (b)  Goodtitle  d.  Wanklen  v.  Bad- 
290.     Gulliver  v.  Wagstaff,   Blk.     title,  2  B.&  P.  120. 
317.  (r)  Anon.  2  Chitty,  181. 

i  2 


244  OP    THE    AFFIDAVIT    OF    SERVICE. 

time  of  the  delivery,  or  generally  that  the  tenant  was 
informed  of  the  intent  and  meaning  of  the  service,  (a) 
If  the  affidavit  only  state  that  the  notice  was  read, 
the  service  will  not  be  sufficient ;  (6)  and  where  it  was 
said,  on  the  delivery  of  the  declaration,  u  This  is  an 
ejectment  from  Mrs.  C.  C. ;"  (c)  as  also  where  the 
expression  was,  "  This  is  an  ejectment  from  Mrs. 
C.  C.,  but  it  is  not  intended  to  turn  you  out  of 
possession,  but  to  get  into  the  receipt  of  the  rents 
and  profits  "  (c)  the  services  were  held  not  to  be 
good  ;  (c)  and  an  insufficient  service  of  this  kind  will 
not  be  aided  by  an  explanation  after  the  essoign  day 
of  its  nature  and  meaning,  (c)  But  if  the  tenant  ac- 
knowledge that  he  understands  the  meaning  and  in- 
tention of  the  service,  it  will  be  good,  without  any 
such  reading  or  explanation,  (d} 

If  the  service  was  upon  the  wife,  the  affidavit  must 
also  state,  that  the  service  was  on  the  premises,  or  at 
the  husband's  house,  (<?)  or  that  the  husband  and  wife 
were  living  together ;  (f )  and,  if  the  service  were  on 
the  child  or  servant  of  the  tenant,  "  that  the  service 
was  acknowledged  by  the  tenant  before  the  essoign 
day  of  the  term,  (g) 

The  affidavit  must  be  positive,   that  the  person 


(a)  Appendix,  Nos.  16,  17, 18.  (e)  Doe  d.  Morland  v.  Bayliss,  6 

(6)  Doe  d.  Whitfield  v.  Roe,  K.  B.  T.  R.  765. 

T.  T.  1815.—MS.  (/)  Jenny  d.  Preston  v.  Cutts,  1 

(c)  Doe  d.  Edwards  v.  Roe,  K.B.  N.  R.  308.    Appendix,  No.  18. 
H.T.  1821.— MS.  (g)  Roe  d.  Hambrook  v.  Doe,  14 

(d)  Doe  d.  Quintin  v.  Roe,  K.  B.  East.  441. 
T.  T.  1816.     MS. 


OP   THE   AFFIDAVIT    OF   SERVICE.  245 

served  was  the  tenant  in  posession,  (a)  or  that  he 
acknowledged  himself  to  be  so.  (6)  An  affidavit 
therefore  that  the  deponent  did  serve  A.  B.  tenant  in 
possession,  or  his  wife,  was  held  not  to  be  sufficiently 
certain  as  to  either,  (c)  So  also  affidavits,  that  the 
deponent  did  serve  the  wives  of  A.  and  B.  who,  or 
one  of  them,  are  tenants  in  possession ;  (d )  that  he 
served  the  person  in  possession,  (e)  and  that  he 
served  A.  B.  whom  he  verily  believed  to  be  the 
tenant  in  possession,  (/)  have  been  held  insufficient. 

If  several  persons  be  in  possession  of  the  disputed 
premises,  and  separate  declarations  in  ejectment  be 
served  upon  them,  one  affidavit  of  the  service  upon 
all,  annexed  to  the  copy  of  one  declaration,  is  suffi- 
cient, provided  one  action  of  ejectment  only  be  in- 
tended ;  (g)  but  if  the  ejectments  are  made  several,  so 
as  to  have  separate  judgments,  writs  of  possession, 
&c.  then  separate  affidavits,  of  the  several  services 
upon  the  different  tenants,  must  be  annexed  to  copies 
of  the  several  declarations  respectively,  (ft) 

When  one  action  only  is  intended,  the  names  of  all 
the  tenants  are  generally  prefixed  to  each  notice ;  but 
in  a  case  where,  in  the  several  declarations  served,  the 
name  of  the  individual  tenant  alone,  to  whom  any  par- ' 
ticular  declaration  was  delivered,  was  prefixed  to  the 


(a)  Doe  v.  Roe,  1  Chitty,  574.  (e)  Doe  d.  Robinson  v.  Roe,  1 

(/>)  Anon.  1  Barnard,  330.   Good-  Chitty,  118,  note  (a), 

tide  v.  Davis,  1  Barnard,  429.  (/)  Doc  v.  Badtitle,  1  Chitty,  215. 

(c)Birkbeckt;.  Hughes,  Barn.  173.  (g)  Appendix,  No.  17. 

(d )  Harding  d.  Baker  v.  Green-  (A)  2  Sell.  Prac.  100. 
smith,  Barn.  174. 


246  OP   THE    AFFIDAVIT    OF    SERVICE. 

notice  to  such  declaration,  instead  of  the  names  of  all 
the  tenants,  so  that  the  person  making  the  affidavit  of 
service  could  not  swear,  that  a  copy  of  any  one  decla- 
ration and  notice  had  been  served  on  all  the  tenants, 
the  Court,  notwithstanding,  thought  one  rule  sufficient, 
on  motion  for  judgment  against  the  casual  ejector,  (a) 

When  an  affidavit  of  service  is  defective,  the 
Court  will  not  grant  a  rule  upon  an  undertaking  that 
a  supplemental  affidavit  shall  be  made  remedying  the 
defect ;  but  upon  obtaining  such  supplemental  affi- 
davit, the  rule  may  be  moved  for  as  in  ordinary 
cases,  (b) 

When  the  action  is  founded  on  the  stat.  1  G. 
IV.  c.  87.  s.  1,  instead  of  moving  for  judgment  in 
the  ordinary  way,  the  lessor  should  be  prepared 
with  the  affidavits  required  by  that  statute,  in  ad- 
dition to  the  usual  affidavit  of  service,  and  the  mo- 
tion should  be  for  a  rule  to  show  cause  "  why  the 
party  should  not  undertake,  upon  being  admitted  de- 
fendant, besides  entering  into  the  common  rule,  and 
giving  the  common  undertaking,  to  give  the  plaintiff 
judgment,  in  case  he  obtain  a  verdict,  of  the  term 
next  preceding  the  trial ;  and  why  he  should  not  enter 
into  a  recognizance  by  himself  and  two  sufficient 
sureties,  in  a  sum  to  be  named  by  the  Court,  to  pay 
the  costs  and  damages  which  may  be  recovered  in  the 
action." 


(a)  Roe  d.  Burlton  v.  Roe,  7  T.  R.     N.  R.  303.      Goodtitle  d.   Sandys 
477.  v.  Badtitle,  K.  B.  T.  T.  1819.— MS. 

(6)  Jenny  d.  Preston  v.  Cutts,  1 


OP   JUDGMENT    AGAINST,    &C.  247 

When  the  claimant  proceeds  upon  the  stat.  1 
Wm.  4.  c.  70.  s.  36,  it  must  be  sworn,  in  addition 
to  the  usual  affidavit  of  service,  that  the  relation  of 
landlord  and  tenant  subsisted  between  the  lessor  and 
the  party  in  possession,  and  that  the  interest  of  the 
latter  in  the  premises  expired  within  ten  days  next 
before  the  service  of  the  declaration. 


OF  JUDGMENT  AGAINST  THE  CASUAL  EJECTOR. 


The  motion  for  judgment  against  the  casual  ejector, 
in  ordinary  cases,  is  of  course  ;  that  is,  such  only  as 
requires  the  signature  of  a  counsel,  or  Serjeant;  and 
after  it  is  signed  it  must  be  taken  by  the  attorney 
to  the  clerk  of  the  rules  in  the  King's  Bench,  or  to 
the  secondary  of  the  Common  Pleas ;  as  these  motions 
will  not  be  received  in  court  unless  there  is  something 
special  in  the  service  of  the  declaration:  (a)  but  when 
any  special  circumstances  exist,  the  rule  must  be 
moved  for  as  in  other  cases.  The  rule  granted  upon 
this  motion  is,  that  the  judgment  be  entered  for  the 
plaintiff  against  the  casual  ejector  by  default,  unless 
the  tenant  in  possession  appear,  and  plead  to  issue, 
within  a  certain  time  mentioned  in  the  rule.  (£) 

The  time  for  moving  for  judgment,  as  also  the  time 
for  the  defendant's  appearance,  is  governed  by  the 
locality  of  the  premises,  and  the  time  mentioned  in 
the  notice,  when  the  defendant  is  to  appear. 

(a)  Ante,  243.  (b)  Appendix,  Nos.  20,  21,  22. 


OF    THE    TIME    ALLOWED 

Iii  the  King's  Bench,  if  the  premises  are  situated  in 
London,  or  Middlesex,  and  the  notice  requires  the 
tenant  to  appear  on  the  first  day,  or  within  the  first 
four  days,  of  the  next  term,,  the  motion  for  judgment 
against  the  casual  ejector  should  regularly  be  made 
in  the  beginning  of  that  term ;  and  then  the  tenant 
must  appear  within  four  days  inclusive,  after  the  mo- 
tion, or  the  plaintiff  will  be  entitled  to  judgment.  If, 
however,  the  motion  be  deferred  until  the  latter  end 
of  the  term,  the  Court  will  order  the  tenant  to  appear 
in  two  or  three  days,  and  sometimes  immediately,  that 
the  plaintiff  may  proceed  to  trial  at  the  sittings  after 
term;  but,  if  the  motion  be  not  made  before  the  last 
four  days  of  the  term,  the  tenant  need  not  appear  until 
two  days  before  the  essoign  day  of  the  subsequent  term. 

In  the  Common  Pleas,  if  the  premises  are  situated 
in  London  or  Middlesex,  and  the  tenant  has  notice 
to  appear  in  the  beginning  of  the  term,  judgment 
against  the  casual  ejector  must  be  moved  for,  within 
one  week  next  after  the  first  day  of  every  Michael- 
mas and  Easter  term,  and  within  four  days  next 
after  the  first  day  of  every  Hilary  and  Trinity  term ; 
(a)  except,  it  seems,  when  the  tenant  has  absconded, 
and  the  proceedings  are  upon  the  statute  of  4  Geo.  IL, 
and  then  the  motion  may  be  made  at  any  time  during 
the  term  ;  because  the  rule  of  32  Car.  II.  relates  only 
to  declarations  in  ejectment,  served  upon  tenants  in 
possession.  (6) 

(«)  Reg.  Trin.  32  Car.  II.  C.  B.  be  correct,  it  seems  to  extend  to 

(i)  Negative  d.  Parsons  v.  Posi-  similar  cases  when  the  proceedings 

live,  Barn.  172.    If  the  principle  are  at  common  law. 

upon  which  this  exception  is  taken  , 


FOR    APPEARANCE.  249 

When  the  premises  are  situated  elsewhere  than  in 
London  or  Middlesex,  or  being  situated  in  London 
or  Middlesex,  the  notice  is  to  appear  qeneralty  of 
the  term,  judgment  must  be  moved  for  in  all  the 
courts  during  the  term  in  which  the  notice  is  given 
to  appear;  and  the  appearance  must  be  entered  within 
four  days  next  after  the  expiration  of  such  term,  whe- 
ther it  be  an  issuable  or  non-issuable  one.  (a) 

When  the  action  is  brought  under  the  provisions 
of  the  statute  1  Wm.  IV.  c.  70.  s.  36,  the  tenant 
must  in  all  cases  enter  his  appearance  within  ten  days 
after  the  delivery  of  the  declaration. 

By  a  rule  of  the  Court  of  King's  Bench,  which  has 
been  adopted  by  the  Court  of  Common  Pleas,  (b]  the 
clerk  of  the  rules  now  keeps  a  book,  in  which  are  en- 
tered all  the  rules  delivered  out  in  ejectments,  in- 
stead of  that  formerly  kept,  which  contained  a  list  of 
the  ejectments  moved.  The  entry  must  specify  the 
number  of  the  entry,  the  county  in  which  the  premises 
lie,  the  name  of  the  nominal  plaintiff,  the  first  lessor 
of  the  plaintiff,  with  the  words  "  and  others,"  if  more 
than  one,  and  also  the  name  of  the  casual  ejector. 
And  unless  the  rule  for  judgment  be  drawn  up,  and 
taken  away  from  the  office  of  the  clerk  of  the  rules 
within  two  days  after  the  end  of  the  term,  in  which 
the  ejectment  shall  be  moved,  no  rule  is  to  be  drawn  up 
or  entered,  nor  any  proceeding  had  in  such  eject- 
ment. 


(«)  Reg.  gen.  4  B.  &  A.  539.  2  B.          (b)  M.  T.  31  Geo.  III.  4  T.  11.  1. 
&.  B.  705;  9  Price  299.  E.  T.  18  Geo.  III.     1  Taunt.  317. 


OF    FILING    COMMON    BAIL. 

When  the  proceedings  are  in  the  King's  Bench  by 
bill,  bail  must  be  filed  for  the  casual  ejector  before  the 
judgment  can  be  signed  against  him,  or  the  Court  will 
set  the  judgment  aside ;  (a)  but  the  bail  need  not  be 
filed  until  after  the  rule  for  judgment  is  drawn  up.  (b) 

The  reason  for  this  form  seems  to  be,  that  there 
is  no  cause  in  Court  against  the  casual  ejector,  before 
bail  is  filed ;  and  therefore  nothing  upon  which  to 
ground  the  judgment,  (c)  But  where  no  bail  was 
filed  in  ejectment,  and  a  writ  of  error  was  brought, 
and  it  appeared  by  the  attorney's  books  that  the  at- 
torney had  his  fee  to  file  bail,  but  was  since  dead,  the 
Court  ordered  bail  to  be  filed  nunc  pro  tune,  that  no 
error  might  appear  upon  the  record ;  because  as  it 
was  on  the  part  of  the  defendant  to  file  bail,  therefore 
he  should  not  be  allowed  to  take  advantage  of  his 
own  error:  and  although  the  plaintiff  proceeded 
without  any  bail  filed  by  the  defendant,  yet  as  the 
defendant's  attorney  had  had  his  fee  to  file  such  bail, 
and  as  there  was  no  proper  remedy  against  the  de- 
fendant, because  he  had  given  the  fee,  nor  against 
the  attorney  because  he  was  dead,  it  therefore  be- 
came the  justice  of  the  Court  to  set  it  right,  that  the 
plaintiff  might  have  no  mischief,  (d) 

(a)  Bouchier  r.  Friend,  2  Show,  for  the  casual    ejector;    but   this 

249.  doctrine  seems  scarcely  consistent 

(6)  Gilb.  Eject.  21.  with  the  modern  principles  of  the 

(c)  It  has  been  said  that  if  the  remedy.     Gilb.  Eject.  22. 

tenant  appear  and  the  cause  go  on  (cO  Gilb.    Eject.  22.    This  case 

to  trial,  the  Court  will  not  compel  seems    scarcely  applicable   to   the 

him,  if  the  proceedings  are  by  bill,  modern  practice.    (  Vide  post,  Writ 

to  confess  lease,  entry,  and  ouster,  of  Error.) 
unless  common  bail  has  been  filed 


OF    SIGNING   JUDGMENT,  &C.  251 

In  the  time  of  Charles  II.  the  Court  published  a 
rule,  (a)  that  no  person  should  be  permitted  to  take 
out  judgment  against  the  casual  ejector  without  a 
certificate  that  a  latitat  had  been  taken  out,  and  bail 
filed  j  because  the  Court  had  no  authority  to  proceed 
by  bill,  unless  the  defendant  appeared  to  be  a  pri- 
soner of  the  Court.  But  this  certificate  is  not  now  re- 
quired, nor  is  a  latitat  necessary ;  for  when  the  ca- 
sual ejector  finds  common  bail,  he  admits  himself  to 
be  a  prisoner  of  the  Court,  and  whether  he  came  into 
Court  regularly  by  latitat,  or  not,  yet  the  judgment 
is  not  cor  am  nonjudice.  (b) 

When  the  time  appointed  for  the  appearance  of 
the  landlord,  or  tenant,  has  expired,  it  is  not  neces- 
sary to  give  a  rule  to  plead,  but  judgment  may  at 
once  be  signed  against  the  casual  ejector,  provided 
the  party  interested  has  neglected  to  appear ;  which 
fact  is  ascertained  by  searching  the  ejectment  books 
of  the  judges  in  the  King's  Bench  and  the  protho- 
notary's  plea  book  in  the  Common  Pleas.     A  rule  for 
judgment  must  then  be  drawn   up  with  the  clerk  of 
the  rules  in  the  former,  and  the  secondary  in  the 
latter  court ;  and  an  incipitur  of  the  declaration  made 
on  a  proper  stamp,  and  also  on  a  roll  of  that  term. 
These  must  be  then  taken  to  the  clerk  of  the  judg- 
ments in  the  King's  Bench,  and  to  the  prothonotary 
in  the  Common  Pleas,  (together,  when  the  proceed- 
ings are  in  the  Common  Pleas,  with  a  warrant  of 
attorney  for  the  defendant,)  and  judgment  will  then 
be  signed  accordingly,  (c) 

(a)  Reg.  Trin.  H  Car.  II.  and         (6)  Gilb.  Eject.  22. 
.Mich  33.  Car.  II.  (c)  App.  No.  23. 


252  OP    SIGNING    JUDGMENT    AGAINST 

The  judgment,  however,  must  not  be  signed,  until 
the  afternoon  of  the  day  next  after  that  on  which  the 
rule  expires  ;  and  if  Sunday  happen  to  be  the  last 
day,  not  until  the  afternoon  of  Tuesday,  (a) 

After  the  judgment  is  signed,  the  writ  of  possession 
must  be  made  out,  (together  with  the  praecipe  for  it, 
if  in  the  King's  Bench,)  and  delivered  to  the  sheriff 
who  will  execute  the  same  by  giving  possession  of 
the  premises  to  the  plaintiff's  lessor. 

Judgments  against  the  casual  ejector  irregularly 
obtained,  will,  as  a  matter  of  course,  be  set  aside ; 
and  as  the  situations  of  claimant,  and  defendant,  in 
ejectment,  are  materially  different,  the  Courts  are  li- 
beral in  their  rules  for  setting  aside  judgments  against 
the  casual  ejector,  although  regularly  signed;  and  will 
grant  them  even  after  execution  executed,  upon  affi- 
davit of  merits,  or  other  circumstances,  which  at  their 
discretion  they  may  deem  sufficient.  (6)  The  regular 
mode  of  setting  aside  such  judgments  is  by  rule  of 
court,  for  the  party  having  obtained  the  judgment  to 
give  up  the  possession ;  but  if  the  circumstances  of 
the  case  require  it,  the  Courts  will  order  a  writ  of 
restitution  to  be  issued,  (c) 

In  an  ejectment  where  a  party  having  been  admitted 

(a)  Hyde  d.  Culliford  v.  Thrust-  vide  Doe  d.  Ledger  v.  Roe,  3  Taunt. 

out,  Say.  303.  506. ,  <•  pi          * »  .  S hfrvv* 

(6)  Doe   d.  Troughton    v.   Roe,  (c)  Goodright  d.  Russell  v.  No- 
Burr.  1996.  Dobbs  v.  Passer,  Stran.  right,  Barn.  178.     Daviesd.  Povey 
975.   Mason  d.  Kendale  u.  Hodgson,  v.  Doe,  Blk.  892.    Appendix,  No. 
Barn.  250.    Doe  d.  Grocers'  Com-  41. 
pany  v.  Roe,  5  Taunt.   205.     Sed 


THE   CASUAL    EJECTOR.  253 

to  defend  alone,  as  landlord,  died  before  the  trial  of 
the  cause,  devising  his  real  estates  to  B,  and  the  les- 
sor (having  committed  no  wilful  delay,)  was  presented 
by  the  Statute  of  Limitations  from  bringing  a  fresh 
ejectment,  the  Court  gave  him  leave  to  sign  judg- 
ment against  the  casual  ejector  in  the  old  suit,  and 
issue  execution  thereon,  unless  B.  would  appear  and 
defend  as  landlord,  (a) 

(a)  Doe  d.  Grubb  v.  Grubb,  5  B.  &  C.  457. 


CHAPTER  IX. 


Of  the  Appearance — Plea — and  Issue. 

IN  the  preceding  chapter  the  suit  has  been  conducted 
to  its  termination,  when  no  appearance  is  entered  in 
pursuance  of  the  notice  subscribed  to  the  declaration; 
we  must  now  consider,  who  may  appear  and  defend 
the  action,  and  in  what  manner  such  appearance 
should  be  made. 

Notwithstanding  the  power  possessed  by  the  Courts 
of  framing  rules  for  the  improvement  of  this  remedy, 
the  interference  of  the  legislature  has  at  times  been 
called  for,  and  it  has  been  most  beneficially  exerted  in 
regulating  the  appearances  to  the  action.  The  tenant 
in  possession,  being  the  person  primdfacie  interested, 
is,  of  course,  the  party  on  whom  the  declaration  is 
always  served;  although  it  frequently  happens  in 
practice,  that  the  lands  belong  to  some  third  person 
out  of  possession,  to  whom  such  service  can  afford  no 
information  of  the  proceedings  against  him,  and  who 
by  the  common  law  has  no  remedy  against  his  tenant 
if  he  omit  to  give  him  notice  of  them.  By  the  rules 


WHO    MAY    APPEAR.  255 

and  practice  of  the  Courts  also,  for  it  would  scarcely 
be  correct  to  say  by  the  common  law,  the  landlord  it 
seems  was  not  permitted  to  defend,  even  when  he  did 
receive  notice,  unless  the  tenant  consented  to  become 
a  co-defendant  with  him;  (a)  and  no  means  existed  by 
which  the  tenant  could  be  compelled  to  appear,  and 
be  made  such  co-defendant  (b)  This  system  occa- 
sioned great  inconvenience  to  landlords.  The  tenants 
from  negligence,  or  fraud,  frequently  omitted  to  ap- 
pear themselves,  or  to  give  to  the  landlords  the  ne- 
nessary  notice ;  and  although  judgments  against  the 
casual  ejector  hWe  been  set  aside,  upon  affidavits  of 
circumstances  of  this  nature,  the  remedy  was  still 
very  incomplete,  (c) 

To  remedy  these  imperfections,  by  the  statute 
11  Geo.  II.  c.  19.  s.  13,  it  is  enacted,  "That  it  shall 
"  and  may  be  lawful  for  the  court  in  which  an  eject- 
"  ment  is  brought,  to  suffer  the  landlord  or  landlords 
"  to  make  him,  her,  or  themselves,  defendant  or  de- 
"  fendants,  by  joining  with  the  tenant  or  tenants,  to 
"  whom  such  declaration  in  ejectment  shall  be  de- 
"  livered,  in  case  he  or  they  shall  appear ;  but  in  case 
"  such  tenant  or  tenants  shall  refuse,  or  neglect  to 
"  appear,  judgment  shall  be  signed  against  the  casual 
"  ejector  for  want  of  such  appearance ;  but  if  the 
"  landlord  or  landlords  of  any  part  of  the  lands,  tene- 
"  ments,  or  hereditaments,  for  which  such  ejectment 
"  was  brought,  shall  desire  to  appear  by  himself  or 
"  themselves,  and  consent  to  enter  into  the  like  rule, 
"  that  by  the  course  of  the  court  the  tenant  in  posses- 
Co)  Lill.  Pr.  Reg.  674.  (r)  Anon.  12  Mod.  2 1 1. 
(6)  Goodright  v.  Hart,  Stran.  880. 


256  OF    THE    APPEARANCE 

(C  sion  in  case  he  or  she  had  appeared,  ought  to  have 
"  done ;  then  the  Court,  where  such  ejectment  shall 
<f  be  brought,  shall  and  may  permit  such  landlord  or 
"  landlords  so  to  do,  and  order  a  stay  of  execution 
"  upon  such  judgment  against  the  casual  ejector,  un- 
"  til  they  shall  make  further  order  therein/' 

By  the  12th  section  of  the  same  statute  it  is  also 
enacted,  "That  every  tenant,  to  whom  any  declara- 
"  tion  in  ejectment  shall  be  delivered,  shall  forthwith 
"  give  notice  thereof  to  his  landlord,  bailiff,  or  re- 
"  ceiver,  under  the  penalty  of  forfeiting  the  value  of 
"  three  years'  improved,  or  rack-rent  of  the  premises 
"  so  demised,  or  holden,  in  the  possession  of  such 
"  tenant,  to  the  person  of  whom  he  holds  ;  to  be  re- 
te  covered  by  action  of  debt  to  be  brought  in  any  of 
"  his  Majesty's  courts  of  record  at  Westminster,  or 
"  in  the  counties  palatine  of  Chester,  Lancaster,  or 
"  Durham,  respectively,  or  in  the  courts  of  grand 
"  sessions  in  Wales." 

With  respect  to  this  latter  section,  it  may  be  pro- 
per at  once  to  observe,  that  it  has  been  interpreted 
to  extend  only  to  those  cases,  in  which  the  ejectments 
are  inconsistent  with  the  landlord's  title.  Thus,  a 
tenant  of  a  mortgagor,  who  does  not  give  him  notice 
of  an  ejectment,  brought  by  the  mortgagee  upon  the 
forfeiture  of  the  mortgage,  is  not  within  the  penalties 
of  the  clause,  (a) 

The  first  enactment  in  the  thirteenth  section  of  this 
statute,  namely,  that  landlords  may  be  made  defend- 

(a)  Buckley  v.  Buckley,  1  T.  R.  647. 


WHO   MAY   APPEAR.  257 

ants  by  joining  with  the  tenants  in  possession,  is  de- 
cidedly only  a  legislative  sanction  of  the  previous 
uniform  practice  of  the  courts ;  and  it  is  also  said,  by 
Wilmot,  J.,  in  the  case  of  Fairclaiin  d.  Fowler  v. 
Shamtitle,  (a)  that  landlords  were  permitted  before 
this  statute  to  defend  ejectments  without  joining  the 
tenants  in  possession.  There  is  indeed  but  one  case 
extant  in  which  the  contrary  doctrine  is  maintained;  (b) 
and  the  loose  notes  to  be  found  of  cases  previous  to 
that  decision  certainly  favour  Mr.  J.  Wilinot's  opi- 
nion, (c)  It  is  therefore  probable,  particularly  since 
the  case  above  alluded  to  happened  but  a  few  years 
before  the  statute  was  passed,  that  the  practice  was 
not  clearly  settled  until  the  time  of  that  decision,  and 
that  the  statute  was  enacted  in  consequence  of  the 
inconvenience  resulting  therefrom,  (d) 

By  the  words  of  the  statute  the  courts  can  admit 
landlords  only  to  defend,  and  difficulties  have  fre- 
quently arisen,  as  to  the  meaning  of  the  word  landlord 
in  the  act,  and  as  to  what  interest  in  the  disputed 
premises  will  be  sufficient  to  entitle  a  person  claim- 
ing title,  to  appear  and  defend  the  action. 

In  the  first  reported  case  upon  the  construction  of 
this  section,  it  was  holden,  that  it  was  not  every  per- 
son claiming  title,  who  could  be  admitted  to  defend 
as  landlord,  but  only  he,  who  had  been  in  some  degree 
in  possession,  as  receiving  rent,  &c. ;  and  upon  this 


(a)  Burr,  1301.  Anon.  12  Mod.  211. 

(6)  Goodright  v.  Hart,  Stran.  830.         (d)  Fairclaim  d.  Fowler  t>.  Sham- 

(c)  Lamb  v.  Archer,  Comb.  208.       tide,  Burr.  1290.  1298. 

S 


258  OF    THE    APPEARANCE. 

principle,  the  Court  would  not  allow  a  devisee  claim- 
ing under  one  will  of  the  testator,  to  defend  as  land- 
lord in  an  ejectment,  brought  by  a  devisee  claiming 
under  another  will  of  the  same  testator,  (a)  But 
this  doctrine  was  afterwards  reprobated  by  Lord 
Mansfield,  in  a  case  where  the  principles  of  the  sec- 
tion were  fully  considered,  and  the  decisions,  anterior 
to  the  act,  investigated  and  explained. 

"  There  are  (says  Lord  Mansfield)  two  matters  to 
be  considered.  First,  whether  the  term  'landlord,' 
ought  not,  as  to  this  purpose,  to  extend  to  every  per- 
son whose  title  is  connected  to,  and  consistent  with, 
the  possession  of  the  occupier,  and  divested,  or  dis- 
turbed, by  any  claim  adverse  to  such  possession,  as 
in  the  case  of  remainders,  or  reversions,  expectant 
upon  particular  estates  :  secondly,  whether  it  does  not 
extend,  as  between  two  persons  claiming  to  be  land- 
lords de  jure,  in  right  of  representation  to  a  landlord 
de  facto,  so  as  to  prevent  either  from  recovering  by 
collusion  with  the  occupier,  without  a  fair  trial  with 
the  other.  Where  a  person  claims  in  opposition  to 
the  title  of  the  tenant  in  possession,  (b)  he  can  in  no 
light  be  considered  as  landlord  :  and  it  would  be  un- 
just to  the  tenant,  to  make  him  a  co- defendant :  their 
defences  might  clash.  Whereas,  when  there  is  a  pri- 
vity between  them,  their  defence  must  be  upon  the 
same  bottom  :  and  letting  in  the  person  behind,  can 
only  operate  to  prevent  treachery  and  collusion.  It 
is  no  answer,  "that  any  person  affected  by  the  judg- 
ment may  bring  a  new  ejectment ;"  because  there  is 

(a)  Roe  d.  Leak  v.  Doe,  Barn.         (b)  Driver  d.  Oxendon  v.  Law- 
193.  rence,  Blk,  1259. 


WHO    MAT    APPEAR. 


259 


a  great  difference  between  being  plaintiff,  or  defend- 
ant, in  ejectment,  (a) 

The  judgment  in  this  case  was  not,  indeed,  ulti- 
mately given  upon  these  points  ;  but  the  principle 
upon  which  the  statute  is  to  be  interpreted,  seems  to 
have  been  established  by  it ;  and  we  may  now  consi- 
der, that  the  word  landlord  is  extended  to  all  persons 
claiming  title,  consistent  with  the  possession  of  the 
occupier:  and  that  it  is  not  necessary  they  should  pre- 
viously have  exercised  any  act  of  ownership  over  the 
lands.  Thus,  the  courts  have  permitted  an  heir,  who 
had  never  been  in  possession,  to  defend  where  the 
father,  under  whom  he  claimed,  had  died  just  before, 
having  previously  obtained  the  same  rule,  (b)  So 
a  devisee  in  trust,  not  having  been  in  possession, 

son  requiring  to  be  made  a  defend- 
ant under  the  act  had  stood  in  the 
situation  of  immediate  heir  to  the 
person  last  seized,  or  had  been  in 
the  relation  of  remainder-man, 
under  the  same  title  as  the  original 
landlord,  I  am  of  opinion  that  he 
might  have  been  permitted  to  de- 
fend as  a  landlord,  by  virtue  of  the 
directions  of  the  statute ;  but  here 


(a)  Fairclaim  d.  Fowler  v.  Sham- 
title,  Burr.  1290.— 94.  The  prin- 
ciples laid  down  by  Lord  Kenyon, 
C.J.,  in  the  case  of  Lovelock  d. 
Norris  v.  Dancaster  (3  T.  R.  783.) 
seem  to  support  the  doctrine  of 
Lord  Mansfield,  above  mentioned; 
although,  from  the  omission,  in  the 
report  of  the  case,  of  the  facts 
upon  which  Lord  Kenyon 's  judg- 
ment was  founded,  the  point  can- 
not be  clearly  ascertained. 

It  was  moved,  that  the  cestui 
qtte  trust  might  be  made  defendant 
in  ejectment  instead  of  the  tenant, 
and  objected  to  on  the  opposite 
side,  because  he  had  never  been  in 
possession,  and  could  not  be  con- 
sidered as  a  landlord  under  the 
statute  11  Geo.  II.  c.  19.  s.  13. 

Lord  Kenyon,  C.J.  "If  the  per- 


the  very  question  in  dispute  be- 
tween the  adverse  party  and  him- 
self is,  whether  he  is  entitled  to  be 
landlord  or  not ;  and  therefore  we 
are  not  authorized  to  extend  the 
provision  of  the  statute  to  such  a 
case  as  this."  The  rule  was  dis- 
charged. 

(6)  Doe  d,  Heblethwaite  v.  Roe, 
cited  3  T.  R.  783. 


260  OF    THE    APPEARANCE. 

was  permitted  to  defend,  (a)  and  a  mortgagee  has 
been  made  defendant  with  the  mortgagor;  (6)  but  in 
a  recent  case,  the  Court  refused  to  permit  a  mort- 
gagee to  defend,  because  it  did  not  appear  that  he 
was  interested  in  the  result  of  the  suit,  (e) 

If  a  party  should  be  admitted  to  defend  as  land- 
lord whose  title  is  inconsistent  with  the  possession  of 
the  tenant,  the  lessor  of  the  plaintiff  may  apply  to  the 
Court,  or  to  a  judge  at  chambers,  and  have  the  rule 
discharged  with  costs,  (d)  If,  however,  he  neglect 
to  do  so,  and  the  party  continue  upon  the  record  as 
defendant,  such  party  will  not  be  allowed  to  set  up 
such  inconsistent  title  as  a  defence  at  the  trial,  (e) 

The  Court  of  King's  Bench,  in  a  case  which  has 
already  been  frequently  cited,  exercised  a  singular 
species  of  equitable  jurisdiction,  with  respect  to  the 
admission  of  a  person  claiming  title,  to  defend  an 
ejectment.  The  action  was  brought  by  one,  claiming 
as  the  heir  of  a  copyholder;  and  the  lord  of  the  manor, 
claiming  by  escheat  pro  defectu  haredis,  obtained  a 
rule  to  show  cause,  why  he  should  not  be  admitted 
defendant.  After  considerable  argument  as  to  the 
legality  of  the  lord's  claim  to  defend,  it  was  agreed 


(a)  Lovelock  d.  Norris  v.  Dan-  vide  B.  N.  P.  95.) 

caster,  4  T.  R.  122.  (c)  Doe  d,  Pearson  v.   Roe,   6 

(6)  Doe  d.  Tilyard  v.  Cooper,  8  Bing.  613. 

T.  R.  645.     It  does  not  appear,  (d)  Doe  d.  Harwood  v.  Lippen- 

from  the  report  of  this  case,  whe-  cott— Coram  Wood,  B.  Trin.  Vac. 

ther  the  mortgagee  had  previously  1817.  MS. 

received  any  rent;   but,  from  the  (e)  Doe  d.  Knight  v.  Lady  Smythe, 

principles  above  laid  down,  the  cir-  4  M.  &  S.  44f. 
cumstance  seems  immaterial.   (Scd 


WHO    MAY    APPEAR.  261 

by  both  parties,  at  the  recommendation  of  the  Court, 
that  the  then  ejectment  should  be  discontinued,  and  a 
fresh  one  brought  in  the  lord's  name,  in  which  the 
heir  should  be  admitted  defendant :  and  Lord  Mans- 
field, C.  J.  declared  afterwards,  that  if  the  heir  had 
refused  to  consent  to  this  arrangement,  they  would 
have  admitted  the  lord  to  defend,  and  that  if  the  lord 
had  refused  his  consent,  they  would  have  discharged 
the  rule,  (a) 

A  wife  has  been  permitted  to  defend,  where  the 
title  of  the  plaintiffs  lessor  arose  from  a  pretended 
intermarriage  with  her,  which  marriage  she  dis- 
puted. (6) 

But  a  parson  claiming  a  right  to  enter,  and  perform 
divine  service,  has  been  held  not  to  have  a  sufficient 
title  to  be  admitted  defendant;  (c)  and,  where  the  ap- 
plication for  admission  appeared  only  a  device  to  put 
off  the  trial,  the  Court  refused  to  grant  a  rule,  (d) 

It  may  be  useful  to  observe,  that  it  is  not  necessary 
for  the  landlord  to  be  made  defendant  in  order  to 
make  his  title  admissible  in  evidence;  but  that  he 
may  with  the  tenant's  consent  defend  in  the  tenant's 
name.  And  where  a  suit  was  so  defended,  and  the 
lessor  of  the  plaintiff,  having  knowledge  thereof,  ob- 


(a)  Fairclaim  d.  Fowler  v.  Sham-  (c)  Martin  v.  Davis,  Stran.  914. 

title,  Burr.  1290.  Vid.  Cont.  Hillingsworth  v.  Brew. 

(6)  Fenwick  v.  Gmvenor,  7  Mod.  ster,  Salk.  256. 

71.  (d)  Feuwick's  case,  Salk.  257. 


262  OF   THE    CONSENT    RULE. 

tained  from  the  tenants  a  retraxit  of  the  plea,  and  a 
cognovit  of  the  action,  the  Court  directed  the  judg- 
ment to  be  set  aside,  (a) 

Thus  far  as  to  who  may  appear:  we  must  now 
consider  how  the  appearance  should  be  made,  and 
herein  first  of  the  Consent  Rule. 

The  form  (b)  and  purposes  of  the  consent  rule 
have  already  been  cursorily  mentioned ;  (c)  but  they 
must  now  be  spoken  of  more  fully.  It  is  in  substance 
as  follows :  First,  The  person  appearing  consents 
to  be  made  defendant  instead  of  the  casual  ejector. 
Secondly,  To  appear  at  the  suit  of  the  plaintiff;  and, 
if  the  proceedings  are  by  bill,  to  file  common  bail. 
Thirdly,  to  receive  a  declaration  in  ejectment,  (d) 
and  plead  not  guilty  :  Fourthly,  At  the  trial  of  the 
issue  to  confess  lease,  entry,  and  ouster,  and  posses- 
sion of  the  premises  in  respect  of  which  he  defends, 
and  insist  upon  title  only.  Fifthly,  That  if  at  the 
trial  he  shall  not  confess  lease,  entry,  ouster,  and 
possession,  whereby  the  plaintiff  shall  not  be  able 
to  prosecute  his  suit,  such  party  shall  pay  to  the 
plaintiff  the  costs  of  the  non  pros,  and  suffer  judg- 
ment to  be  entered  against  the  casual  ejector.  Sixthly, 
That  if  a  verdict  shall  be  given  for  the  defendant,  or 
the  plaintiff  shall  not  prosecute  his  suit  for  any  other 
cause  than  the  non-confession  of  lease,  entry,  ouster, 

(a)  Doe  d.  Locke  v.  Franklin,  7  (d)  The  declaration,  served  upon 
Taunt.  9.  the  tenant  to  bring  him  into  court 

(b)  Appendix,  No.  25.  is  the    only   declaration  now  de- 

(c)  Ante,  15,  livered. 


OP   THE    CONSENT    RULE. 

and  possession,  the  lessor  of  the  plaintiff  shall  pay 
costs  to  the  defendant.  Seventhly,  When  the  land- 
lord appears  alone,  that  the  plaintiff  shall  be  at  liberty 
to  sign  judgment  immediately  against  the  casual 
ejector,  but  that  execution  be  stayed  until  the  Court 
shall  further  order;  (a)  and  Eighthly,  where  the  pro- 
ceedings are  under  stat.  1.  Geo.  IV.  c.  87,  to  give 
judgment  of  the  term  preceding  the  trial,  in  case 
verdict  shall  pass  for  the  plaintiff. 

This  consent  rule  will,  in  all  cases,  be  sufficient  to 
prevent  a  nonsuit  for  want  of  a  real  lease,  and  of  a  real 
entry  and  ouster  by  the  defendant.  When,  therefore, 
an  ejectment  is  brought  by  a  joint  tenant,  parcener, 
or  tenant  in  common,  against  his  companion  (to  sup- 
port which  an  actual  ouster  (6)  is  necessary),  the 
defendant  ought  to  apply  to  the  Court  upon  affi- 
davit, (c)  for  leave  to  enter  into  a  special  rule,  re- 
quiring him  to  confess  lease  and  entry  at  the  trial, 
but  not  ouster  also,  unless  an  actual  ouster  of  the 
plaintiff's  lessor  by  him,  the  defendant,  should  be 
proved ;  and  this  special  rule  will  always  be  grant- 
ed, (d)  unless  it  appear  that  the  claimant  has  been 
actually  obstructed  in  his  occupation,  (e) 

As  the  consent  rule  contains  conditions  to  be  ob- 
served on  the  part  of  the  claimant,  as  well  as  of  the 
tenant,  the  claimant  is  obliged  to  join  in  it;  and  an 


(a)  Sel.  N.  P.  644.  (0  Anon.  7  Mod.  39.     Gates  d. 

(b)  Ante,  54.  Wigfall    v.    Brydon,    Burr.    1895. 

(c)  Appendix,  No.  26.  Doe  d.  Ginger  v.  Roe,  2  Taunt.  397. 

(d)  Appendix,  Nos.  27,  28. 


264  OF    CONSOLIDATING    ACTIONS. 

attachment  will  lie  against  either  party  for  disobedi- 
ence of  this,  as  of  every  other,  rule  of  court. 

It  may  here  be  observed,  that  when  several  tenants 
are  in  possession,  to  whom  the  claimant  delivers  de- 
clarations for  different  premises,  the  Court  will  not 
join  them  in  one  action,  on  the  motion  of  either  party, 
although  the  claimant  has  but  one  title  to  all  the 
lands ;  for,  if  the  motion  be  made  on  the  part  of  the 
plaintiff,  the  Court  will  object,  that  each  defendant 
must  have  a  remedy  for  his  costs,  which  he  could  not 
have  if  all  were  joined  in  one  declaration,  and  the 
plaintiff  prevailed  only  against  one  of  them ;  and,  if 
it  be  made  on  the  part  of  the  defendants,  that  the 
lessor  might  have  sued  them  at  different  times,  and 
it  would  be  obliging  him  to  go  on  against  all,  when 
perhaps  he  might  be  ready  against  some  of  them 
only,  (a)  But  where  several  ejectments  are  brought 
for  the  same  premises,  upon  the  same  demise,  the 
Court  on  motion,  or  a  judge  at  his  chambers,  will 
order  them  to  be  consolidated :  (£)  and  although, 
where  the  premises  are  different,  the  Court  will  not 
consolidate  the  actions,  yet  in  a  modern  case,  where 
on  a  rule  to  show  cause  why  the  proceedings  in  all 
the  causes  (which  were  thirty-seven  in  number,  and 
brought  against  the  several  inhabitants  of  the  houses 
in  Sackville-street)  should  not  be  stayed,  and  abide 
the  event  of  a  special  verdict  in  one  of  them,  as  they 
all  depended  upon  the  same  title,  Lord  Kenyon,  C.  J. 


(a)  Medlicot  v.  Brewster,  2  Keb.      Burghers,  Barn.  176.    Roe  d.  Burl- 
524.    Smith  u.  Crabb,  Stran.  1149.      ton  v.  Roe,  7  T.  R.  477. 
(6)  Grimstone  d.  Lord  Gower,  v. 


HOW    TO    APPEAR. 

said,  it  was  a  scandalous  proceeding  on  the  part  of 
the  claimant ;  and  the  rule  was  made  absolute,  (a) 

When  the  tenant  intends  to  apply  to  be  made  de- 
fendant, his  attorney  must  procure  a  blank  form  of  a 
consent  rule,  and  entitle  it  in  the  margin  with  the 
names  of  the  plaintiff  and  casual  ejector,  inserting 
also  therein,  the  premises  as  described  in  the  declara- 
tion, or  such  part  of  them  as  he  would  wish  to  defend, 
and  stating  in  the  body  the  consent  of  both  parties 
that  the  tenant  be  made  defendant.  He  must  then 
sign  his  name  to  this  paper,  which  is  called  the  agree- 
ment for  the  consent  rule,  (&)  and  leave  the  same  at 
one  of  the  judges'  chambers  when  the  proceedings 
are  in  the  King's  Bench,  or  with  the  prothonotary 
when  in  the  Common  Pleas,  (where  it  will  also  receive 
the  signature  of  the  attorney  of  the  lessor  of  the 
plaintiff,)  together  with  a  plea  of  the  general  issue. 
Common  bail  is  then  entered  for  the  tenant,  if  the 
proceedings  are  by  bill,  or  the  usual  appearance,  if 
by  original ;  and  the  suit  proceeds  in  his  name,  in- 
stead of  that  of  the  casual  ejector,  (c) 

When  the  landlord  and  tenant  appear  jointly,  or 
the  landlord  appears  alone,  the  same  forms  are  ob- 
served, mutatis  mutandis,  together  with  the  addition 
of  counsel's  signature  to  a  motion  (which  is  motion 
of  course,  and  must  be  annexed  to  the  consent  rule) 
to  admit  the  landlord  and  tenant,  or  landlord  only,  to 
defend;  accompanied  also,  when  the  landlord  ap- 

(a)  2  Sell.  Prac.  144.  (c)  2  Sell.  Prac.  102. 

(6)  Appendix,  No.  24. 


266  OF   THE    APPEARANCE. 

pears  alone,  with  an  affidavit  of  the  tenant's  refusal  to 
appear,  (a) 

When  the  party  who  wishes  to  be  made  defendant 
is  not  the  tenant,  or  actual  landlord,  but  has  some  in- 
terest to  sustain,  the  Court  must  be  moved,  on  an 
affidavit  of  the  facts,  to  permit  him  to  defend  with,  or 
without,  the  tenant,  as  the  case  may  require. 

If  the  tenant  refuse  to  appear,  the  landlord  cannot 
appear  in  his  name,  nor  appoint  an  attorney  to  do  so 
for  him,  and  an  irregular  appearance  of  this  sort  will 
be  ordered  to  be  withdrawn,  (b} 

When  it  happens  that  the  lessor  of  the  plaintiff 
claims  lands  in  the  possession  of  different  persons,  and 
one  of  the  tenants  would  be  a  material  witness  for 
the  others,  such  tenant  should  suffer  judgment  to  go 
by  default,  as  to  the  part  in  his  possession  ;  because, 
if  he  appear,  and  be  made  a  defendant,  he  becomes 
a  party  to  the  suit,  and  consequently  cannot  be  a  wit- 
ness therein ;  and  it  seems  that  if  he  appear  and 
plead,  the  Court  will  not  afterwards  strike  out  his 
name  upon  motion,  (c) 

When  the  landlord  is  admitted  to  defend  without 
the  tenant,  judgment  must  be  signed  against  the 
casual  ejector,  according  to  the  conditions  of  the  con- 
sent rule.  The  reason  for  this  practice  is,  to  enable 


(a)  Hobsond.  Bigland  v.  Dobson,         (b)  Roe  d.  Cook  v.  Doe,  Barn. 
Barn.   179.     2  Sell.    Prac.    102.—      39.  178. 
Appendix,  No.  29.  (c)  B.  N.  P.  98. 


HOW    TO    APPEAR.  2f>7 

the  claimant  to  obtain  possession  of  the  premises,  in 
case  the  verdict  be  in  his  favour ;  because,  as  the 
landlord  is  not  in  possession,  no  writ  of  possession 
could  issue  upon  a  judgment  against  him. 

The  motion  to  admit  the  landlord  to  be  defendant, 
instead  of  the  tenant,  ought  regularly  to  be  made  be- 
fore judgment  is  signed  against  the  casual  ejector,  by 
the  opposite  party ;  and  if  it  be  delayed  until  after 
that  time,  the  Court  will  grant  the  motion,  or  not,  at 
their  discretion.  («)  Thus,  where  a  judgment  against 
the  casual  ejector  was  signed,  and  a  writ  of  posses- 
sion executed  thereon,  and  it  appeared,  upon  motion, 
that  the  landlord's  delay  in  his  application  arose  from 
the  tenant's  negligence,  in  not  giving  him  due  notice 
of  the  service  of  the  declaration,  according  to  the 
provisions  of  statute  1 1  Geo.  II.  c.  19.  s.  12 ;  the 
Court  ordered  the  judgment  and  execution  to  be  set 
aside,  compelled  the  tenant  to  pay  all  the  costs,  and 
permitted  the  landlord  to  be  made  defendant  on  the 
usual  terms ;  notwithstanding  it  was  strongly  argued 
by  the  opposite  party,  that  the  judgment  was  perfectly 
regular,  and  that  the  tenant's  negligence  was  entirely 
a  matter  between  him  and  his  landlord,  for  which  the 
statute  had  given  the  landlord  ample  compensation,  (b) 
But  in  a  late  case,  the  Court  of  Common  Pleas, 
after  a  recovery  in  an  undefended  ejectment,  without 
collusion,  and  after  the  lessor  of  the  plaintiff  had  con- 
tracted for  the  sale  of  part  of  the  premises,  and  let 
the  purchaser  into  possession,  refused  to  set  aside  the 


(a)  Dobbs  v.  Passer,  Stran.  975.         Burr.  1996. 
(6)    Doe  d.  Troughton  v.   Koe, 


268  OF    THE    APPEARANCE. 

judgment  and  writ  of  possession  upon  an  applica- 
tion of  this  nature,  and  assigned  as  their  reason,  that 
the  concealment  of  the  delivery  of  the  declaration  was 
a  matter  between  the  tenant  and  his  landlord,  with 
which  the  plaintiff's  lessor  had  no  concern,  (a)  And 
in  another  case  where  the  landlord  applied  to  be 
made  defendant,  after  judgment  had  been  signed, 
but  before  execution,  and  the  claimant  offered  to 
waive  his  judgment,  if  the  landlord,  who  resided  in 
Jamaica,  would  give  security  for  the  costs,  to  which 
offer  the  landlord's  counsel  would  not  accede,  the 
Court  refused  the  application,  and  permitted  the 
plaintiff's  lessor  to  take  out  execution,  (b) 

The  appearance  should,  in  all  cases,  be  entered  of 
the  term  mentioned  in  the  notice ;  and  where  the  no- 
tice was  to  appear  in  Hilary  term,  and  the  tenant  en- 
tered an  appearance  in  Michaelmas  term,  and  did 
nothing  farther,  and  the  plaintiff's  lessor,  finding  no 
appearance  of  Hilary  term,  signed  judgment  against 
the  casual  ejector,  the  Court  held  thejudgment  regular, 
but  afterwards  set  it  aside  upon  payment  of  costs,  to 
try  the  merits,  (c) 

The  party,  intending  to  defend  the  action,  having 
appeared  according  to  the  forms  above  mentioned, 
the  lessor's  duty,  in  consequence  thereof,  must  be  our 
next  consideration. 

When  the  time  for  appearance  has  expired,  the 

(a)  Goodtitle  v.  Badtitle,  4  Taunt.      186. 

820.  (c)  Mason  d.  Kendall  v.  Iloclg- 

(b)  Roe  d.  Hyde  v.  Doe,  Barn,      son,  Barn.  250. 


OF   THE    APPEARANCE.  269 

lessor's  attorney  must  search  at  the  proper  offices  for 
the  agreement  before  mentioned  on  the  part  of  the 
defendant,  to  enter  into  the  consent  rule  ;  and  having 
signed  his  name  on  it,  above  that  of  the  defendant's 
attorney,  and  also  (when  the  proceedings  are  in  the 
King's  Bench)  obtained  the  signature  of  the  judge 
at  whose  chambers  the  agreement  was  left,  he  must 
take  it  to  the  clerk  of  the  rules,  or  secondary,  who 
will  file  it,  and  draw  up  the  consent  rule  there- 
upon :  (a)  which  consent  rule  is,  in  truth,  a  copy  of 
the  agreement,  prefixing  only  the  date  of  drawing  it 
up,  omitting  the  premises  in  the  margin,  and  adding, 
u  by  the  Court,"  instead  of  the  attornies'  names,  at 
the  end. 

The  plea  of  the  general  issue,  we  have  before  ob- 
served, is  generally  left  by  the  defendant  with  the 
agreement  for  the  consent  rule;  and,  when  this  is 
the  case,  as  soon  as  the  consent  rule  is  drawn  out, 
the  issue  is  at  once  made  up,  with  a  copy  of  the  rule 
annexed,  and  delivered  to  the  defendant's  attorney, 
with  notice  of  trial  as  in  other  actions.  But  if  the 
plea  be  not  left  with  the  consent  rule,  (£)  the  plain- 
tiff must  give  a  rule  to  plead,  and  then  judgment 
may  be  entered  for  want  of  a  plea,  as  in  other  ac- 


(a)  Appendix,  No.  25.  this  plea  as  null  and  void,  signed 

(b)  Where  the  plea  was  entitled  judgment  against  the  casual  ejector; 
with  the  true  name  of  the  cause,  the  judgment  was  set  aside  with 
but  by  mistake  in  the  body  of  the  costs,  as  irregular,  for  the  plea  was 
plea,  the  name  of  the  lessor  was  in-  properly  entitled,  and  not  a  nullity, 
serted  as  the  person  complaining,  Goodtitle  d.  Gardiner  v.  Badtitle, 
instead  of  that  of  the  plaintiff,  and  Bam.  191. 

the  lessor's  attorney,  looking  upon 


270  OF    THE    PLEA. 

tions  without  a  special  motion  in  Court  for  the  pur- 
pose, (a) 

OF  THE  PLEA,  AND  ISSUE. 

The  general  issue  in  this  action  is,  not  guilty ;  (b) 
and  it  seldom  happens,  by  reason  of  the  consent  rule, 
that  the  defendant  can  plead  any  other  plea.  It  is 
not,  indeed,  easy  to  imagine  a  case,  in  which  any 
other  plea  in  bar  can  be  necessary ;  for  as  the  claimant 
must,  in  the  first  instance,  prove  his  right  to  the  pos- 
session, whatever  operates  as  a  bar  to  that  right,  as  a 
fine  with  non-claim,  the  statute  of  limitations,  a  de- 
scent cast,  &c.  must  cause  him  to  fail  in  proving  his 
possessory  title,  and  consequently  entitle  the  defend- 
ant to  a  verdict  upon  the  general  issue,  (c)  As,  how- 
ever, the  consent  rule  was  introduced  for  the  pur- 
poses of  justice,  the  Courts  would  undoubtedly  per- 
mit the  defendant  to  plead  specially,  if  the  particular 
circumstances  of  the  case  should  require  it.  (d) 

A  plea  to  the  jurisdiction  may  be  pleaded  in  eject- 
ment by  permission  of  the  Court,  but  not  otherwise. 
This  permission  is  necessary,  because  a  plea  to  the 
jurisdiction  is  a  plea  in  abatement,  and  must  there- 
fore be  pleaded  within  the  four  first  days  of  the  term 

(a)  Reg.  Hil.  1649,  and  Trin.  18      trespass  in  its  nature,  and  in  tres- 
Car.  II.  B.  R.  pass  accord  is  a  good  plea;"  but  as 

(b)  Appendix,  No.  30.  this   plea   is  quite  inapplicable  to 

(c)  In  the   time  of  Lord  Coke,  the  modern  uses  of  the  action,  the 
(Peytoe's  case,  9  Co.   77,)  an  ac-  Court,  it  is  conceived,  would  not  at 
cord  with  satisfaction  was  held  to  this    time    allow   a    defendant    to 
be  a  good  plea  in  ejectment,  *'  be-  plead  it. 

cause  an  ejectment  is  an  action  of        (</)  Philips  v.  Bury,  Carth.  180. 


OF    THE    PLEA.  271 

next  ensuing  that  of  which  the  declaration  is  entitled, 
at  which  time  the  casual  ejector,  and  not  the  tenant, 
is  defendant.  To  obtain  leave  to  plead  such  plea,  the 
Court  must  be  moved  upon  affidavit  before  the  ex- 
piration of  the  four  first  days  of  term,  the  plea  itself 
being  first  filed ;  and  the  motion  should  be  for  a  rule 
to  show  cause  why  the  defendant  should  mot  be  per- 
mitted to  plead  the  facts  stated  in  the  affidavit ;  and 
why  the  plea  then  filed  to  that  effect,  should  not  be 
allowed.  The  latter  part  of  the  rule,  and  the  filing 
of  the  plea,  are  necessary  parts  of  the  application, 
because  the  four  days  would  in  all  probability  expire 
before  cause  could  be  shown  and  the  plea  pleaded, 
unless  such  plea  were  pleaded  be  bene  esse  in  the  first 
instance,  (a) 

Such,  at  least,  has  been  the  mode  of  proceeding  in 
the  only  two  reported  cases  upon  the  subject,  which 
can  be  cited  as  authorities.  But  a  practical  difficulty 
occurs,  for  which  these  cases  seem  not  to  provide. 
At  the  time  when  the  application  for  leave  to  plead  to 
the  jurisdiction  is  made,  the  tenant  has  not  appeared, 
and  the  proceedings  are  against  the  casual  ejector. 
By  whom  then  should  the  plea  be  pleaded,  and  how 
is  the  tenant  to  appear  ?  The  most  simple  method 
of  avoiding  these  difficulties,  is  for  the  tenant  in 
the  first  instance  to  file  the  plea  in  his  own  name, 
and  then  move  for  a  rule  to  show  cause  "  why  he 
should  not  be  forthwith  admitted  defendant  upon  the 
usual  terms,  except  as  far  as  relates  to  pleading  the 
general  issue,  and  why  he  should  not  be  permitted 

(a)  Williams  d.  Johnson  v.  Keen,      10  East.  523. 
Blk.  197.    Doe  d.  Morton  v.  Roe, 


OF    THE    PLEA. 

to  plead  the  facts  stated  in  the  affidavit,  upon  which 
he  moves  in  lieu  thereof,  and  why  the  plea  already 
filed  by  him  to  that  effect,  should  not  be  allowed." 

Ancient  demesne  is  a  good  plea  in  ejectment ;  (a) 
but  it  is  a  plea  much  discouraged,  and  the  person 
pleading  it  must  carefully  observe  every  form  which 
the  Court  deems  necessary.  As  it  is  a  plea  in  abate- 
ment, application  for  leave  to  plead  it,  must,  as  has 
already  been  stated,  be  made  within  the  four  first  days 
of  term  ;  and  the  application  must  be  accompanied  by 
an  affidavit,  that  the  lands  are  holden  of  a  manor  which 
is  ancient  demesne,  that  there  is  a  court  of  ancient 
demesne  regularly  holden,  and  that  the  claimant  has 
a  freehold  interest ;  and  the  Court  will  refuse  the  mo- 
tion, if  any  of  these  facts  be  omitted  in  the  affi- 
davit. (6) 

Ancient  demesne  cannot  of  course  be  pleaded  where 
the  ejectment  is  brought  for  copyhold  lands;  (c)  but 
if  the  affidavit  state  that  the  lands  are  ancient  de- 
mesne, the  Court  will  not  reject  the  plea  upon  a  counter 
affidavit  that  great  part  of  the  lands  are  copyhold ; 
but  will  leave  the  plaintiff  to  state  such  matter  in  his 
reply,  (d) 

When  the  party  appearing  has  entered  into  the 
consent  rule  and  pleaded,  he  may  move  for  a  rule  to 
reply,  before  the  plaintiff's  lessor  has  joined  in  the 

(a)  Appendix,  Nos.  31,  32.  (c)  Brittle  v.  Bade,  Salk.  185,  S. 

(6)    Doe  d.  Rust  v.  Roe,  Burr.  C.  Ld.  Raym.  43. 

1046.  Dennd.Wroot  v.  Fenn,8T.  (d)    Doe  d.  Morton  v.  Roe,  10 

R.  474.  East.  523. 


OP  THE  PLEA.  273 

consent  rule,  and  the  plaintiff  may  be  non-prossed 
thereby ;  but  as  the  plaintiff  is  only  a  fictitious  per- 
son, the  defendant  will  not  be  entitled  to  costs,  (a) 

The  issue  must  agree  with  the  declaration  against 
the  casual  ejector  in  all  respects,  except  in  the 
defendant's  name,  unless  an  order  for  the  alteration 
be  obtained ;  and  if  there  be  a  difference  between  the 
issue  and  the  declaration,  the  Court  on  motion  will  set 
it  right,  (b)  But  where  there  was  a  variance  be- 
tween the  description  of  the  premises  in  the  Nisi 
Prius  record,  (upon  which  the  plaintiff  recovered,) 
and  the  issue,  and  it  did  not  appear  how  the  pre- 
mises were  described  in  the  declaration,  the  Court 
refused  to  set  the  verdict  aside.  (<?) 

If  the  party  interested  appear  and  plead,  and  after 
having  pleaded,  withdraw  his  plea,  the  judgment 
must  be  entered  against  the  party  so  appearing ; 
but  where  the  costs  of  the  suit  were  defrayed  by  the 
landlord  in  the  name  of  his  tenants,  who  gave  a 
retraxit  of  the  plea,  and  a  cognovit  of  the  action,  the 
Court  set  aside  the  retraxit  and  cognovit,  and  per- 
mitted the  landlord  to  defend  the  action  in  his  own 
name,  (d) 

The  record  and  issue  are  made  up  with  memo- 
randums, if  the  proceedings  are  by  bill ;  and  without 

(o)  Goodright  d.  Ward  v.  Bad-     B.  &  A.  471.    Jones  ».  Tatham,  8 
title,  Blk.  763.  Taunt.  634. 

(b)  Bass  v.  Bradford,  Ld.  Raym.  (rf)  Doe  d.  Lock  v.  Franklin,  7 
1411.  Taunt.  9. 

(r)  Doe  d.  Cotterell  v.  Wylde,  2 

T 


OF    THE    PLEA. 
/ 

any  memorandum,  if  by  original,  as  in  other  actions  : 
the  time  allowed  for  notice  of  trial  is  also  the  same. 

A  plea  puis  darrien  continuance  it  seems  may  be 
pleaded  to  this  action ;  but  where  the  plea  was  that 
after  issue  joined  one  of  the  lessors  of  the  plaintiff  had 
released  to  the  defendant,  the  Court  held  the  plea  in- 
sufficient, and  said  the  release  ought  to  have  been  by 
the  nominal  plaintiff;  because  although  in  every  other 
respect  the  Court  would  look  upon  the  lessor  as  the 
interested  person,  as  far  as  the  record  was  concerned 
they  must  consider  the  nominal  plaintiff'  as  the  real 
party,  (a)  A  release  by  the  nominal  plaintiff  so 
pleaded,  would  certainly,  when  the  old  practice  pre- 
vailed, have  been  a  good  defence  to  the  action ;  but 
even  then  the  Courts  held  such  a  release  to  be  a  con- 
tempt, (6)  and  it  may  be  doubted  whether  a  judge 
would  receive  the  plea  at  the  present  day. 

When  the  ancient  practice  prevailed,  if  the  plaintiff 
in  ejectment  after  issue  joined,  and  before  the  trial, 
entered  into  any  part  of  the  premises,  the  defendant 
at  the  assizes  might  plead  such  entry  as  a  plea  puis 
darrien  continuance.  But  this  plea  cannot  now  be 
ever  necessary;  for  the  plaintiff,  being  a  fictitious 
person,  cannot  enter  upon  the  land  ;  and  if  the  lessor 
of  the  plaintiff  should  enter,  he  would  be  unable  at 
the  trial  to  prove  the  possession  of  the  defendant,  and 
must  consequently  fail  in  his  ejectment,  (c) 


(a)  Doe  d.  Byne  v.  Brewer,  4  M.       (c)     Moore   v.    Hawkins,    Yelv. 
&  S. 300.  180. 

(fc)  Ante,  203. 


CHAPTER  X. 

Of  the  Evidence  in  the  Action  of  Ejectment. 


THE  proofs,  by  which  a  claimant  in  ejectment  is 
required  to  support  his  claim,  not  only  vary  with  the 
nature  of  his  title  to  the  premises,  but  are  also  de- 
pendent on  the  position  in  which  he  is  placed,  with 
respect  to  the  defendant.  When  no  privity  has 
existed  between  the  parties ;  that  is  to  say,  when 
neither  the  defendant,  nor  those  under  whom  he 
holds,  have  been  immediately  or  derivatively  admitted 
into  possession,  either  by  the  lessor  of  the  plaintiff 
himself,  or  those  under  whom  he  claims,  the  lessor 
must  establish  a  legal  and  possessory  title  to  the 
premises ;  (a)  because,  as  has  been  already  observed, 
it  is  by  the  strength  of  his  own  title,  and  not  by  the 
weakness  of  his  adversary's,  that  he  must  prevail,  (a) 
But  where  there  has  been  a  privity  between  the 
parties,  as  where  the  relation  of  landlord  and  tenant 
has  subsisted  between  them,  or  where  the  defendant 
has  been  admitted  into  possession,  pending  a  treaty 
for  a  purchase  or  on  other  grounds,  (b)  proof  of  title 
is  not  required,  but  instead  thereof,  the  lessor  should 

(«)  Ante,  32,  33.  (ft)  Ante,  108.  123. 

T2 


276  OF    THE    EVIDENCE 

prove  that  the  defendant,  or  those  under  whom  he 
holds,  (a)  were  so  admitted  into  possession,  and  that 
their  right  to  the  possession  has  ceased :  together 
also,  when  the  privity  is  not  between  the  immediate 
parties  to  the  action,  with  the  derivative  title  of  the 
claimant  from  the  party,  by  whom  the  defendant  was 
originally  admitted  into  possession.  (6)  And  the 
defendant  will  not  be  permitted  to  rebut  this  evi- 
dence, by  showing  that  the  title  of  the  claimant  was 
originally  defective  and  insufficient,  for  it  would  be 
contrary  to  good  faith  to  permit  a  party  to  controvert 
the  title  of  him,  by  whom  he  has  obtained  posses- 
sion; (c)  but  he  is  allowed  notwithstanding  to  prove 
the  nature  of  such  title,  and  to  show,  that  although 
originally  a  valid  one,  it  expired  before  the  commence- 
ment of  the  action,  and  that  the  land  then  belonged 
to  another,  for  such  a  defence  is  not  inconsistent 
with  the  terms  of  the  original  possession,  (d) 

Notwithstanding  the  terms  of  the  consent  rule, 
it  was  formerly  h olden  necessary  to  prove  the  de- 
fendant in  possession  of  the  premises  in  dispute,  (e) 
and  plaintiffs  were  frequently  nonsuited  on  subtile 
points  arising  out  of  this  practice,  quite  independent  of 

(a)  Barwick  d.  Mayor  of  Rich-         (d~)  England  d.  Syburn  v.  Slade, 

mond  v.  Thompson,  7  T.  R.  488.  4   T.  R.   682.     Doe  d.  Jackson  v. 

(6)  Doe  d.  Biddle  v.  Abrahams,  Ramsbottom,  3  M.  &  S.  516.     Doe 

1  Stark..  305.    Rennie  v.  Robinson,  d.  Lowdon  v.  Watson,  2  Star.  230. 

1  Bing.  147.  Baker  v.  Hellish,  10  Ves.  jun.  544. 

(c)  Sullivan  v.  Stradling,  2  Wils.  Gravenor  v,  Woodhouse,  1  Bing. 

208.    Driver  d.  Oxenden  v.  Law-  38.     Phillips  v.  Pearse,  5  B.  &  C. 

rence,  Blk.  1259.    Parker  v.  Man-  433. 

ning,    7  T.   R.    537.     Hodson    v.          (e)  Goodright  d.  Balsh  v.   Rich, 

Sharpe,    10    East.    355.      Doe    d.  7   T.  R.  327.     Fenn  d.  Blanchard 

Pritchett  v.  Mitchell,  1  B.  &  B.  11.  v.  Wood,  1  B.  &  P.  573. 


IN    THE    ACTION    OF    EJECTMENT.  277 

the  merits  of  the  case,  (a)  But  by  recent  orders  of 
the  different  Courts,  the  consent  rule  has  been  altered, 
so  as  to  include  the  confession  of  possession,  as  well 
as  of  lease,  entry,  and  ouster,  (6)  and  no  proof  of 
possession  is  now  required  beyond  the  production  of 
the  rule. 

The  locality  of  the  premises  as  described  in 
the  declaration,  must  be  proved,  (e)  but  after  the 
plaintiff  has  established  his  title  to  a  verdict,  the 
Court  will  not  try  the  extent  of  his  claim,  as  defined 
by  particular  metes  and  bounds,  (d) 

The  title  proved  must  not  be  inconsistent  with  the 
demise  in  the  declaration.  When  therefore  several  les- 
sors declare  upon  a  joint  demise,  proof  of  a  joint  in- 
terest in  the  whole  premises  must  be  given.  But,  if  a 
demise  is  laid  by  each  of  several  lessors  separately, 
they  will  be  entitled  to  recover,  whether  they  have  a 
joint  or  several  interest,  for  a  several  demise  severs 
a  joint  tenancy,  (e)  And  in  a  case  where  a  joint 
demise  was  laid  by  seven  trustees  of  a  charity,  who 
were  appointed  at  different  times,  and  the  tenant  had 
paid  one  entire  rent  to  the  common  clerk  of  the  trus- 
tees, it  was  held  that  such  payment  of  rent  should 
enure  in  the  most  beneficial  way  for  the  trustees  in 
support  of  their  title  as  brought  forward  by  them- 


<«)  Doe  d.  James  v.  Stanton,  2  Gunson  v.  Welsh,  4  Camp.  264. 

B.&  A.  371.    Doe  d.  Giles  v.  War-  (d)  Doe  d.  Draper's  Company  v. 

wick,  5  M.  &  S.  393.  Doe  v.  Strad-  Wilson,  2  Stark.  477. 

ling,  2  Stark.  187.  (e)  Doe  d.  Marsack  v.  Read,  12 

(6)  Ante,   262.  East.  57. 

(c)  Ante,  218—20.    Vide  Doe  d. 


278  OF    THE    EVIDENCE 

selves,  unless  the  defendant  expressly  proved  them 
to  be  entitled  in  a  different  manner.  And  it  was 
considered  that  the  circumstance  of  their  being  ap- 
pointed at  different  times  was  not  sufficient  evidence 
for  that  purpose,  (a) 

The  claimant  need  not  in  any  case  prove  that  he 
has  made  an  actual  entry  on  the  premises,  unless 
when  a  fine  with  proclamations  (£)  has  been  levied  by 
a  party  having  a  sufficient  estate  to  make  the  fine 
operative,  (c)  or  when  his  title  would  be  otherwise 
barred  by  the  statute  of  limitations  ;  (d)  but  in  both 
these  cases,  the  claimant  must  prove  that  he  has  made 
an  actual  entry  on  the  land  before  the  day  of  the 
demise  in  the  declaration,  and  within  a  year  next 
before  the  commencement  of  the  action,  (e) 

It  has  already  been  observed,  that  the  common  con- 
sent rule  dispenses,  in  all  cases,  with  proof  of  entry 
and  ouster  by  the  defendant.  (/) 

As  the  evidence  necessary  to  establish  the  lessor's 
case  varies  according  to  the  nature  of  his  claim,  we 
shall  now  separately  consider  the  proofs  requisite 
in  support  of  each  particular  title ;  firstly,  when  no 
privity  exists  between  the  parties;  and,  secondly, 
when  such  privity  does  exist. 

Before  however  we  proceed  in  this  inquiry,  it  will 

(a)  Doe  d.  Clarke  v.  Grant,  12         (d)  Ante,  92. 
East.  221.  (e)  Ante,  102. 

(6)  Ante,  99.  (/)  Ante,  263. 

(r)  Ante,  94— 97. 


IN    THE    ACTION    OF    EJECTMENT.  279 

be  useful  to  give  a  short  account  of  the  decisions 
respecting  the  competency  of  parties,  having  an  in- 
terest in  the  lands,  to  give  testimony  concerning 
them. 

The  tenant  in  possession  is  not  a  competent  witness 
to  support  his  landlord's  title,  inasmuch  as  he  is  in- 
terested in  the  event  of  the  suit ;  for  if  the  verdict  be 
against  his  landlord,  he  is  liable  for  the  mesne  profits, 
and  may  also  be  turned  out  of  possession :  (a)  nor  is 
his  evidence  admissible  to  prove  that  he,  and  not  the 
defendant,  is  really  the  tenant ;  for  a  verdict  against 
such  defendant  would  have  the  effect  of  ejecting  him 
(the  witness)  from  the  lands,  which  is  an  immediate 
interest,  and  outweighs  the  contrary  and  remoter 
effect  of  subjecting  himself  by  his  testimony  to  a 
future  action,  (b) 

So  also,  a  witness,  to  whom  the  claimant  has  agreed 
to  grant  a  lease  of  the  lands  in  question,  in  case 
he  recover  them,  is  incompetent  to  give  evidence 
against  the  defendant,  (c)  So  also,  where  a  witness 
stated  that  the  claimant  had  formerly  assigned  to  him 
the  premises  for  a  particular  purpose,  but  that  he  had 
given  up  the  deed,  and  did  not  believe  that  he  had 
any  beneficial  interest  in  them,  he  was  considered 
incompetent,  (c7)  Upon  the  principle  of  interest  also, 

(a)  Doe  d.  Forster  v.  Williams,  Bingham,  4  B.  &  A.  672. 
Cowp.   621.     Bourne   v.   Turner,         (c)  Gilb.  Evid.  108. 
Stran.632.  (d)  Doe  d.  Scales  v.  Bragg.  1  R. 

(b)    Doe  d.    Jones    v.  Wilde,  5  &M.87. 
Taunt.    183.      Doe     d.    Lewis    v. 


OF    THE    EVIDENCE 

the  person  having  the  inheritance  of  the  lands  is  not 
an  admissible  witness,  where  two  persons,  both  of 
whom  admit  his  title,  are  contending  for  the  pos- 
session under  different  grants  from  him,  (unless  in- 
deed they  claim  under  grants  not  rendering  rent,) 
for  he  is"  interested,  inasmuch  as  he  may  prefer 
one  tenant  to  another,  (a)  But  where  both  con- 
tending parties  claimed  under  the  same  person,  who 
had  become  bankrupt,  he  was  permitted  to  prove, 
after  releasing  his  surplus  and  allowance,  that  the  pre- 
mises in  dispute  were  not  included  in  the  first 
lease.  (6)  A  person  who  has  mortgaged  lands,  can- 
not, on  the  same  principle,  be  an  evidence  concern- 
ing them ;  for  the  equity  of  redemption  still  remains 
in  him.  (c)  An  heir  apparent  may,  however,  be  a 
witness,  because  his  heirship  is  a  mere  contingency  j 
but  a  remainder- man  cannot,  for  he  hath  a  present 
estate  in  the  land;  and  this  rule  extends  to  the 
remainder-man  in  tail,  (d) 

But  a  joint  defendant  who  has  suffered  judgment 
by  default,  is  a  good  witness  to  prove  the  other  de- 
fendant in  possession,  (e) 

So  also  the  declarations  of  deceased  tenants  are 
admissible  for  the  purpose  of  proving  that  any 


(a)  Fox  v.  Swann,  Styl.  482.  Bell  (d)    Smith  v.  Blackham,    Salk. 

v.  Harwood,  3  T.  R.  308.  2d3.      Doe  d.   Lord  Teynham    v. 

(ft)    Longchamps     v.     Fawcett,  Tyler,  6Bing.391. 

Peake,  N.  P.  C.  101.  (e)  Doe   d.   Harrop  v.  Green,  4 

(c)  Anon.  11  Mod.  354.  Esp.  198.    Ante,  266. 


BY    HEIRS.  281 

particular  lands  formed  part  of  the  estate  they  oc- 
cupied ;  (a)  and  also  to  negative  an  adverse  posses- 
sion. (6) 

Where  the  ejectment  is  brought  on  several  demises, 
and  the  evidence  shows  that  the  title  is  exclusively 
in  one  of  the  lessors,  the  other  cannot  be  compelled 
to  be  examined  as  a  witness  for  the  defendant,  as  all 
the  lessors  are  jointly  liable  for  the  costs,  (c) 

Let  us  now  consider  the  proofs  to  be  adduced  by  a 
claimant  in  ejectment,  when  his  title  to  the  lands  can 
be  controverted. 

And  first,  when  he  claims  by  descent,  as  heir  of 
the  person  last  seized. 

When  the  party  claims  by  descent,  he  must  prove 
that  the  ancestor  from  whom  he  derives  his  title,  was 
the  person  last  seized  of  the  lands  in  fee  simple,  (d ) 
and  that  he,  the  claimant,  is  his  heir. 

This  seisin  of  the  ancestor  may  be  proved  by 
showing,  that  he  was  either  in  the  actual  possession 
of  the  premises,  at  the  time  of  his  death,  or  in  the 
receipt  of  rent  from,  the  ter-tenant;  for  possession  is 
presumptive  evidence  of  a  seisin  in  fee,  until  the  con- 
trary be  shown,  (e)  But  if  it  is  probable  that  the 

(a)  Davies  v.  Pierce,  2  T.  R.  53.  (c)  Fenn  rf.  Pewtress  v.  Granger, 

Outram  v.  Morewood,  5  T.  R.  121.  3  Camp.  178. 

Et  vide  Ivat  v.  Finch,   1  Taunt  (d)  Co.  Litt.  11.6.   Jenkins  d. 

141.  Harris  v.  Pritchard,  2  Wils.  45. 

(6)  Doe  d.  Human  v.  Pcttit,  5  (e)  B.  N.  P.  103. 
B.  &  A.  223. 


282  OF    THE    EVIDENCE 

defendant  will  rebut  this  presumption,  the  lessor 
should  be  prepared  with  other  proofs  of  his  ancestors' 
title. 

In  order  to  show  the  heirship  of  the  claimant,  he 
must  prove  his  descent  from  the  person  last  seised, 
when  he  claims  as  lineal  heir,  or  the  descent  of  him- 
self and  the  person  last  seised  from  some  common 
ancestor,  or  at  least  from  two  brothers  or  sisters,  (a) 
if  he  claims  collaterally  ;  together  with  the  extinction 
of  all  those  lines  of  descent  which  would  claim  before 
him.  This  is  done  by  proving  the  marriages,  births, 
and  deaths,  necessary  to  complete  his  title,  and  show- 
ing the  identity  of  the  several  parties.  Thus,  sup- 
posing A.  the  claimant,  and  B.  the  person  last 
seized,  to  be  cousins,  descended  from  a  common  an- 
cestor C.y  B.  being  the  only  child  of  D.,  the  elder  son 
of  C.y  and  A.  the  only  child  of  E.9  the  younger  son  of 
C.  In  this  case  A.  must  prove  the  marriage  of  C., 
the  birth  and  marriage  of  !>.,  the  birth,  marriage,  and 
death  of  E.,  the  birth  and  death  without  issue  of  B., 
and  his  own  birth  ;  (b)  for  it  is  a  maxim  of  law,  that  he 
who  asserts  the  death  of  another,  who  was  once  living, 
must  prove  his  death,  whether  the  affirmative  issue 
be  that  he  be  dead  or  living,  (c) 

The  testimony  of  persons  present  when  the  events 
happened,  or  who  knew  the  parties  concerned  at 
those  periods,  and  the  production  of  extracts  from 
parish  registers,  are  the  most  satisfactory  modes  of 

(a)  Roe  d.  Thorne  u.  Lord,  2  Blk.  (c)  Wilson  v.  Hodges,  2  East. 

1099.  312. 

(6)  2  Blk.  Comm.  208,  &c. 


BY    HBIR8.  283 

proving  facts  of  this  nature ;  and  when  the  claimant 
is  the  lineal  descendant  of  the  person  last  seized,  but 
little  difficulty  can  arise  in  procuring  the  necessary 
proofs.  But  when  he  claims  as  collateral  heir,  and  it 
is  necessary  to  trace  the  relationship  between  him 
and  the  person  last  seized  through  many  descents  to 
a  common  ancestor,  difficulties  often  intervene,  from 
the  remoteness  of  the  period  to  which  the  inquiries 
must  be  directed,  which  upon  the  ordinary  rules  of 
evidence  would  be  insuperable.  To  remedy  this  evil, 
the  Courts,  from  the  necessity  of  the  case,  have  re- 
laxed those  rules  in  inquiries  of  this  nature  ;  and 
allow  hearsay  and  reputation  (which  latter  is  the  hear- 
say of  those,  who  may  be  supposed  to  have  known  the 
fact,  handed  down  from  one  to  another)  to  be  admitted 
as  evidence  in  cases  of  pedigree,  (a) 

Thus  the  declarations  of  deceased  members  of  the 
family,  whether  relations  or  connexions  by  mar- 
riage, (6)  are  admissible  evidence  to  prove  relation- 
ship ;  as  who  a  person's  grandfather  was,  or  whom  he 
married,  or  how  many  children  he  had,  or  as  to  the 
time  of  a  marriage,  or  of  the  birth  of  a  child,  and  the 
like;  so  likewise  the  declarations  of  deceased  per- 
sons, as  to  tfye  fact  and  time  of  their  own  marriages, 
and  whether  their  children  were  born  before  or  after 
marriage,  are  admissible ;  (c)  though  such  declarations 
cannot  be  received  to  bastardize  their  children  born 

(a)  Higham  t>.  Ridgway,  10  East.  Fuller  v.  Randall,  2  M.  &  P.  20. 

120.  (c)  Goodrighl  d.  Slevens  v.  Moss, 

(fr)B.  N.  P.  294.  Vowels  v.  Young,  Cowp.  591.     May  v.  May,  B.  N.  P. 

13  Vez.    148.    Doe  d.  Northey  v.  112. 
Harvey,  1  R.  &  M.  297.      Doe  d. 


284  OF    THE    EVIDENCE 

in  wedlock,  (a)  Where  likewise  a  cancelled  will  of 
a  deceased  ancestor  was  found  amongst  the  papers 
of  the  person  last  seized,  it  was  allowed  to  be  read  in 
evidence  as  a  paper  relating  to  the  family;  the  place 
in  which  it  was  found  being  considered  as  amounting 
to  its  recognition,  by  the  party  last  seized,  as  the  de- 
claration of  his  ancestor  concerning  the  state  of  his 
family.  (£) 

The  reputation  of  a  family  may  also  afford  presump- 
tive evidence  of  the  death  of  a  person  without  issue.(c) 

But  hearsay  evidence  is  not  admissible  to  prove  the 
place  of  any  particular  birth  ;  for  that  is  a  question 
of  locality  only,  and  does  not  fall  within  the  principle 
of  the  rules  applicable  to  cases  of  pedigree :  (d}  nor 
are  the  declarations  of  deceased  neighbours,  or  of  the 
intimate  acquaintances,  or  servants  of  the  family, 
evidence  on  questions  of  this  nature ;  (e)  nor  is  the 
hearsay  of  a  relative  to  be  admitted  when  the  relative 
himself  can  be  produced.  (/)  It  is  also  necessary  in 
order  to  entitle  the  declarations  of  a  deceased  relative 
to  be  admitted,  that  they  should  be  made  under  cir- 
cumstances, when  the  relation  may  be  supposed 
without  an  interest,  and  without  a  biasj  and,  there- 

(«)  Rex  v.  Luffe,  8  East.  193.  514.     Rex  v.  Inhabitants  of  Eris- 

(6)  Doe  d.  Johnson  v.  Lord  Pern-  well,  3  T.  R.  707.  723.     Weeks  v. 

broke,  11  East.  505.  Sparke,  1  M.  &  S.  688.    Johnson  v. 

(c)  Doe  d.  Banning  v.  Griffin,  15  Lawson,  2  Bing.  90.      Et  vide  14 
East.  293.    Doe  d.  Oldham  v.  Wol-  East.  330. 

ley,  8B.&C.  22.  (/)   Peiidreliw.  Pendrell,  Stran. 

(d)  Rex.  v.  Inhabitants  of  Erith,      294.   Harrison  v.  Blades,  3  Campb. 
8  East.  542.  457. 

(e)  Vowels  v.  Young,  13  Vez.  147. 


BY    HEIRS.  285 

fore,  if  they  are  made  on  a  subject  in  dispute  after  the 
commencement  of  a  suit,  or  after  a  controversy  pre- 
paratory to  one,  they  ought  not  to  be  received,  on 
account  of  the  probability  that  they  were  partially 
drawn  from  the  deceased,  or  perhaps  intended  by  him 
to  serve  one  of  the  contending  parties,  (a) 

The  presumption  of  the  continuance  of  human  life 
ends  in  general  at  the  expiration  of  seven  years,  from 
the  time  when  the  person  was  last  known  to  be 
living;  (6)  but  such  death  may  under  particular  cir- 
cumstances be  presumed  in  a  shorter  time;  as  where 
a  party  sailed  in  a  vessel  which  was  never  afterwards 
heard  of.  (c)  Proof  also  of  the  fact  that  a  tenant  for 
life  has  not  been  seen  or  heard  of  for  fourteen  years, 
by  a  person  residing  near  the  estate  although  not  a 
member  of  the  family,  is  primd  facie  evidence  of  his 
death,  (d  ) 

Reputation  has  been  held  good  evidence  of  a  mar- 
riage, in  an  ejectment  brought  by  an  heir,  though  his 
parents  (whose  marriage  was  the  subject  in  dispute) 
were  both  living,  (e) 

It  need  scarcely  be  stated,  that  in  all  cases  where 
the  declarations  of  parties  if  deceased  would  be  ad- 
missible in  evidence,  the  parties  themselves  may 


(a)  The  case  of   the    Berkeley  (c)  Watson  v.  King,  1  Stark.  121. 

Peerage,  4  Campb.  401.  (d  )  Doe  d.  Lloyd  v.  Deakin,  4 

(6)  19  Car.  II.  c.  6.  s.  1.    Doe.  d.  B.  &  A.  433 . 

George  v.  Jesson,  6  East.  80.    Rowe  (e)  Doe  d.  Fleming  v.  Fleming, 

v.  Hasland,  Blk.  404.  4  Bing.  266. 


OF    THE   EVIDENCE 

be  called  as  witnesses,  whilst  living,  unless  rendered 
incompetent  by  interest. 

Entries  in  family  bibles  and  other  books  may  like- 
wise be  received  in  evidence  in  questions  of  pedigree.(a) 
So  also  recitals  in  family  deeds,  monumental  inscrip- 
tions, engravings  on  rings,  old  pedigrees  hung  up  in 
a  family  mansion,  and  the  like,  (b) 

The  original  visitation  books  of  heralds,  compiled 
when  progresses  were  solemnly  and  regularly  made 
into  every  part  of  the  kingdom  to  inquire  into  the 
state  of  families,  and  to  register  such  marriages  and 
descents  as  were  verified  to  them  on  oath,  are  also  al- 
lowed to  be  good  evidence  of  pedigrees ;  (c)  but  a 
recital  in  an  act  of  Parliament,  stating  I.  S.  to  be 
heir  at  law  to  a  particular  person,  has  been  held  not 
to  be  evidence,  (d  ) 

When  the  lessor  claims  as  heir  to  copyhold  premises, 
he  must,  in  addition  to  the  foregoing  evidence,  pro- 
duce the  rolls  of  the  manor,  which  show  a  surren- 
der to  him,  or  to  those  under  whom  he  claims  ;  but  it  is 
not  necessary  that  he  should  prove  his  own  admittance, 
unless  the  ejectment  be  against  the  lord,  (f)  If,  how- 
ever, the  ejectment  is  against  the  lord,  he  must  either 
show  that  he  is  admitted,  or  that  he  has  tendered  him- 


(a)  Whitlocke  v.  Baker,  13  Vez.  B.  N.P.  112. 
514.  (e)  Rumney  u.Eves,  1  Leon.  100. 

(6)   Vowels  v.  Young,    13   Vez.  Holdfast  d.  Woollams  v.  Clapham, 

148.  i    East.    600.    Doe  d.  Tarrant  v. 

(c)  2  S.  N.  P.  772.  Hcllier,  3  T.  R.  162.    Ante,  63. 

(d)  Anon.   12  Mod.  384  ;  et  vide 


BY    HEIRS.  287 

self  to  be  admitted  and  been  refused ;  but  it  is  not 
necessary  to  tender  himself  to  be  admitted  at  the  lord's 
court,  if  the  steward,  upon  application  out  of  court, 
has  refused  to  admit  him.  (a) 

When  he  claims  as  customary  heir,  he  must,  after 
proving  his  pedigree,  show  that  he  is  heir  strictly 
within  the  custom,  for  every  custom  which  departs 
from  the  common  law  is  construed  strictly ;  and  if  the 
custom  be  silent,  the  common  law  must  regulate  the 
descent.  (6)  Thus,  where  the  custom  is  that  the 
eldest  sister  shall  inherit,  the  eldest  aunt,  or  niece,  is 
not  within  it.  (c)  So  also,  if  the  custom  be  that  the 
youngest  son  shall  inherit,  it  will  not  extend  to  the 
youngest  nephew,  (d) 

The  usual  method  of  proving  these  several  customs, 
is  by  means  of  the  different  admissions  of  the  custo- 
mary heirs  upon  the  court  rolls  of  the  manor,  pro- 
duced by  the  steward  upon  oath ;  or  by  the  medium 
of  verified  examined  copies.  But  if  the  -ancient  court 
rolls  should  be  lost,  or  there  should  be  no  instance  of 
an  admission  upon  them,  similar  to  the  custom  set  up 
by  the  lessor,  an  entry  upon  the  rolls,  stating  the 
mode  of  descent  of  lands  in  the  manor,  will  be  ad- 
missible evidence,  as  to  the  existence  of  the  custom,  (e) 
Where,  however,  the  lessor  claimed  as  youngest 
nephew,  and  produced,  as  the  only  evidence  to  sup- 
Co)  Doe  d.  Burrell  v.  Bellamy,  2  (d  )  1  Roll.  624. 
M.  &  S.  87.  Aute,  C3.  (e)  Roe  d.  Beebee  v.  Parker,  5 

(b)  Co.  Copy,  43.  T.  R.  20.    Denn  rf.   Goodwin   v. 

(c)  Radcliff  v.  Chaplin,  4  Leon.      Spray,  1  T.  R.466. 
242. 


288  OF    THE    EVIDENCE 

port  his  title,  an  admission  upon  the  court  rolls  of  a 
youngest  nephew,  as  customary  heir,  at  a  court-leet 
and  baron  held  in  1657 ;  and  for  the  defendant  it  ap- 
peared upon  the  same  rules,  that  at  a  court-leet  and 
baron  held  in  1692,  the  jury  and  homage  found,  that 
the  custom  of  descent  extended  only  to  the  youngest 
son,  and  if  no  son,  to  the  youngest  brother,  and  no 
farther,  (which  entry  was  corroborated  by  two  old 
witnesses,  who  testified,  that  they  had  heard  and  be- 
lieved that  the  custom  went  no  farther;)  upon  a  ver- 
dict being  found  for  the  lessor  of  the  plaintiff],  the 
Court  refused  to  set  it  aside.  («) 

It  may  here  be  useful  to  observe,  that  when  the 
lessor  claims  as  heir,  and  proves  his  pedigree  and 
stops,  and  the  defendant  sets  up  a  new  case,  which 
is  answered  by  fresh  evidence  on  the  part  of  the 
lessor,  the  defendant  is  entitled  to  the  general  reply.  (£) 
And  if,  after  the  pleadings  are  opened  by  the  junior 
counsel  for  the  lessor,  the  defendant's  counsel  ex- 
presses himself  ready  to  admit  the  lessor  to  be  the 
heir,  it  will  entitle  him  to  open  the  case,  and  make 
the  first  address  to  the  jury,  (c) 

Secondly,  of  the  title  by  devise. 

• 
When  the  lessor  claims  as  the  devisee  of  a  freehold 


(a)   Doe  d.  Mason  v.  Mason,  3  tingham  Summer  Assizes,  1813,  MS. 

Wils.  63.  and  by  Wood,  B.  in  a  subsequent 

(6)  Good  title  d.  Revett  v.  Braham,  ejectment  between  the  same  parties, 

4T.  R.  497.  Nottingham    Lent  Assizes,     1814, 

(c)  So  ruled  by  Le  Blanc,  J.  in  MS. 
Fenn  d.  Wright  v.  Johnson,  Not- 


BY   DEVISEES.  289 

interest  at  common  law,  or  of  a  customary  freehold 
where  there  is  no  custom  to  surrender  to  the  use  of 
the  will,  (a)  he  must  prove  the  seisin  of  his  devisor ;  (6) 
and  if  the  devise  under  which  he  claims,  be  of  a  re- 
mainder, or  a  reversion  in  fee,  or  the  like,  he  must 
prove  the  determination  of  all  the  precedent  estates. 
He  must  also  prove  the  due  execution  of  the  will 
pursuant  to  the  provisions  of  the  statute  29  Car.  II. 
c.  3.  s.  5  ;  unless  it  be  more  than  thirty  years  old, 
it  which  case  it  proves  itself;  and  the  age  of  the  will 
is  to  be  reckoned  from  the  day  it  bears  date,  and  not 
from  the  time  of  the  testator's  death,  (c) 

When  the  devise  is  of  a  freehold  interest,  the 
original  will  must  be  produced ;  but  if  the  will  be 
lost,  an  examined  copy  of  it  may  be  proved,  or  parol 
evidence  may  be  given  of  its  contents.  But  neither 
an  exemplification  under  the  great  seal,  (d)  nor  the 
probate  under  the  seal  of  the  Ecclesiastical  Court,  (e) 
will  be  admitted  as  secondary  evidence ;  though  it 
seems  that  the  register-book,  or  ledger-book,  in 
which  the  will  is  set  out  at  length,  is  in  such  case  ad- 
missible. (/) 

The  statutory  regulations  for  the  execution  of  wills 
containing  devises  of  freehold  lauds,  are  to  be  found 
in  the  fifth  section  of  the  statute  of  frauds,  (g)  whereby 

(a)  Hussey  v.  Grills,  Amb.  299.  Gough,  4  T.  R.  707.  (in  notis.) 

(6)  Ante.  (d  )  Comber.  46. 

(c)  Doe  d.  Oldham  v.  Wolley,  8  (e)  Doe  d.  Ash  w.Cal vert,  2Camp. 

B.  &  C.  22.    Lord  Rancliffec.  Par-  389. 

sons,  6  Dow.  202.     M'Kenire  v.  (/)  St.  Leger  v.  Adams,  1  Lord 

Fraser,  9  Vez.  5,  et  vide  n.  f  to  Raym.  731.    Anon.  Skin.  174. 

the  case  of  Gough  d.  Calthorpe  v.  (g)  2D  Car.  II.  c.  3. 

U 


290  OF    THE    EVIDENCE 

it  is  enacted,  that,  "  all  devises  and  bequests  of  any 
"  lands,  or  tenements,  devisable  either  by  force  of 
"  the  statute  of  wills,  or  by  that  statute,  or  by  force 
"  of  any  particular  custom,  shall  be  in  writing,  and 
"  signed  by  the  party  so  devising  the  same,  or  by 
"  some  other  person  in  his  presence  and  by  his  ex- 
u  press  direction,  and  shall  be  attested  and  sub- 
u  scribed  in  the  presence  of  the  devisor  by  three  or 
"  four  credible  witnesses,  or  else  shall  be  utterly  void 
"  and  of  none  effect." 

This  section  of  the  statute  of  frauds  is  very  loosely 
worded,  and  it  will  be  necessary  to  enter  rather  largely 
into  the  different  points,  which  have  arisen  respecting 
the  due  execution  of  a  will  under  it. 

The  first  solemnity  required  is  the  signature  of  the 
testator  ;  but  it  is  not  necessary  that  he  should  sign 
his  name  at  the  bottom  of  the  will ;  it  is  sufficient  if 
his  name  be  at  the  beginning,  or  on  the  side  or  in  any 
part  of  it,  in  his  own  handwriting.  As,  for  instance, 
a  will  in  the  handwriting  of  the  testator,  beginning 
with  the  words,  "  I,  A.  B.,  do  make  this  my  last  will," 
has  been  held  to  be  properly  signed ;  (a)  and  if  the 
testator  cannot  write,  his  mark  will  be  a  sufficient 
signature.  (6)  But  if  the  will  be  on  several  sheets, 
and  it  appear  to  have  been  the  intention  of  the  testator 
to  sign  every  one,  but,  from  weakness  or  incapacity, 
he  leave  some  of  them  unsigned,  it  will  not,  it  seems, 


(a)Lemaynev.  Stanley,  3  Lev.  1.      185,   and  Addy  v.  Grix,    8  Ves. 
Hilton  v.  King,  3  Lev.  86.  504. 

(b)  Harrison  v.  Harrison,  8  Ves. 


BY    DEVISEES.  291 

be  a  sufficient  execution  within  the  statute,  (a)  The 
effect  of  sealing  alone  is  not  yet  quite  decided ;  but 
it  is  the  better  opinion,  that  it  is  not  a  sufficient  sig- 
nature, (b) 

It  is  not  required  by  the  statute,  that  the  witnesses 
should  see  the  devisor  sign,  or  that  he  should  sign  in 
their  presence,  or  that  they  should  be  informed  of 
the  nature  of  the  instrument  they  are  about  to  attest ; 
it  is  sufficient,  if  the  devisor  declare  to  them,  that  the 
signature  is  his  handwriting,  or  without  such  declara- 
tion, if  the  whole  body  of  the  will,  as  well  as  the 
name,  be  written  by  himself,  (c)  And  in  a  late  case 
where  the  testator  was  blind,  the  Court  of  Common 
Pleas  determined,  that  it  was  not  necessary  on  that 
account,  under  the  statute,  to  read  over  the  will,  pre- 
vious to  the  execution,  in  the  presence  of  the  attesting 
witness,  although  if  there  were  other  circumstances 
inducing  a  suspicion  of  fraud,  such  an  execution  would 
materially  strengthen  the  presumption,  (d  ) 

The  next  formality  is  the  attestation  and  subscrip- 
tion. It  must  be  attested  and  subscribed  by  three,  or 
more  witnesses,  but  it  is  not  necessary  thatthe  at- 
testation and  subscription  of  all  the  witnesses  should 


(o)  Right  d.  Cator  v.  Price,  Doug.  454.     Ellis  v.  Smith,  1  Ves.  jun.  1 1 . 

241.  S.  C.    1    Dick.  225.     Trymner  v. 

(b)  Lemayne  v.  Stanley,  3  Lev.  1.  Jackson,  cited    1  Ves,  487,  recog. 
Lee  v.  Libb,  1  Show.  69.  S.  C.  Carth.  2  Ves.  258.    Stonehouse  v.  Evelyn, 
35.       Warneford    v.    Warneford,  3  P.  Win.  252.     Peate  v.  Ougly, 
Stran.  764.    Smith  v.  Evans,  1  Wils.  Comyn.  197.    White  v.  Trustees  of 
313.    Ellis  v.  Smith,  1  Ves.  jun.  11.  British  Museum,  6  Bing.  310. 

S.  C.  1  Dick.  225.  (d)  Longchamp  d.  Goodfellow  v. 

(c)  Grayson  ».  Atkinson,  2  Ves.  Fish,  2  N.  R.415. 

u2 


OP    THE    EVIDENCE 

be  at  one  time.  Hence,  where  the  devisor  published 
his  will  in  the  presence  of  two  witnesses,  who  sub- 
scribed it  in  his  presence,  and  some  time  after  he 
sent  for  a  third  witness,  and  published  it  in  his  pre- 
sence also,  the  will  was  holden  to  be  duly  attested,  (a) 
But  it  is  necessary  that  all  the  witnesses  attest  the 
same  instrument,  and  that  the  instrument  attested  be 
that  by  which  the  lands  are  intended  to  pass.  There- 
fore, where  a  testator  devised  his  lands  by  a  will, 
made  in  the  presence  of,  and  attested  by  two  wit- 
nesses only,  and  about  a  year  after  made  a  codicil, 
whereby  he  revoked  a  legacy  given  by  his  will,  and 
declared  that  the  will  should  be  ratified  and  confirmed 
in  all  things,  except  as  altered  by  that  writing,  and 
that  his  codicil  should  be  taken  as  part  of  his  will  ; 
and  executed  this  codicil  in  the  presence  of  one  of  the 
former  witnesses,  and  another  person,  neither  the 
first  will,  nor  the  other  witness  to  it,  being  present, 
it  was  holden  to  be  an  insufficient  attestation.  (£) 
And  where  a  testator,  by  a  will  not  witnessed,  devised 
lands,  and  afterwards  made  a  codicil,  and  taking  the 
codicil  in  one  hand,  and  the  will  in  the  other,  said, 
"  This  is  my  will  whereby  I  have  settled  my  estate, 
and  I  publish  this  codicil  as  part  thereof,"  the  signa- 
ture of  the  codicil,  by  the  testator  and  three  witnesses, 
was  held  insufficient  to  render  the  will  valid,  (c]  But 
if  there  be  several  instruments  written  by  the  testator 
upon  one  paper,  and  it  plainly  appear  that  his  inten- 

(a)  Gryle  v.  Gryle,  2  Atk.  170,  Carth,  35. 

(n.)    Ellis  v.  Smith,  1  Ves.  jun.  11.         (c)  Periphrases.  Lord Lansdowne, 

14.     Grayson  v.  Atkinson,  2  Ves.  cited  Com.  334.     Attorney  General 

454.  458.  v.  Barnes,  Free.  Cha.  270. 

(6)  Lee  v.  Libb,  3  Lev.  1.    S.C. 


BY    DEVISEES.  "293 

tion  was  that  all  should  form  but  one  will,  and  not  a 
will  and  codicil,  in  such  case  the  execution  of  the  last 
instrument  will  be  considered  as  an  execution  of  the 
whole,  (a)  So  also  if  a  will  be  written  upon  several 
sheets  of  paper,  but  at  one  time,  it  will  be  valid,  al- 
though all  the  sheets  are  not  executed  by  the  testator, 
nor  signed  by  the  witnesses,  nor  even  seen  by  them  ; 
provided  the  last  sheet  be  regularly  signed  and  at- 
tested, and  every  part  of  the  will  be  present  at  the 
time  of  the  execution ;  of  which  latter  fact  the  pre- 
sumption of  law  will  be  in  favour,  should  the  different 
sheets  correspond,  (b) 

An  attestation  by  a  mark  has  been  adjudged  to 
be  a  sufficient  execution  within  the  meaning  of  the 
statute,  (c) 

The  attestation  and  subscription  of  the  witnesses 
must  be  in  the  presence  of  the  testator,  but  proof 
need  not  be  given  that  the  testator  actually  did  see 
the  witnesses  subscribing :  their  attestation  is  suffi- 
cient if  it  appear  that  he  might  see  them,  (d)  Thus, 
where  the  witnesses  signed  in  a  room  adjoining  to 
the  one  which  contained  the  testator's  bed,  upon  a 
table  opposite  to  the  door  of  communication,  it  was 
holden  to  be  sufficiently  in  the  testator's  presence,  (e) 
So  also,  where  the  testator  executed  his  will  in  his 


(a)  Carleton  d.  Griffin  v.  Griffin,  (d)  Todd  d.  Lord  Winchelsea,  1 

Burr.  549.  M.  &  M.  13.  Longford  v.  Eyre,   1 

(6)  Bond  v.  Seawell,  Burr.  1773.  P.  Wms.  740. 

S.  C.  Blk.  407.    B.  N.  P.  264.  (e)  Shires  v.  Glasscock,  Salk.  688. 

(c)  Harrison  v.  Harrison,  8  Ves.  Davy  v.  Smith,  3  Salk.  395. 
185.  Addy  v.  Grix,  ib.  504. 


'294 


carriage,  and  the  witnesses  signed  their  names  in  a 
room  hard  by,  the  carriage  being  in  such  a  situation, 
as  to  enable  the  testator  to  see  what  was  passing  in 
the  room,  the  will  was  held  to  be  valid,  (a)  But  if  the 
testator  could  not  possibly  see  the  witnesses  subscribe, 
as  if  they  subscribe  in  another  room,  out  of  sight,  al- 
though by  the  testator's  express  directions,  the  exe- 
cution will  not  be  good  :  the  design  of  the  statute 
being  to  prevent  a  wrong  paper  from  being  intruded 
on  the  testator,  in  the  place  of  the  true  one.  \b]  And 
upon  this  principle,  if  the  testator,  between  the  time 
of  his  own  subscription,  and  the  subscription  of  the 
witnesses,  lose  his  mental  powers,  it  will  invalidate  the 
will,  although  signed  in  his  presence,  (c) 

The  clause  of  attestation  generally  expresses,  that 
the  witnesses  subscribed  in  the  presence  of  the  testa- 
tor ;  but  such  a  statement  is  not  absolutely  necessary, 
and  if  omitted,  the  jury  will  not  be  concluded  from 
finding  that  the  will  was  duly  subscribed,  although 
all  the  witnesses  are  dead,  and  their  signatures  proved 
in  the  common  way.  (d) 

With  respect  to  the  credibility  of  the  attesting 
witnesses,  it  may  be  observed  generally  that  they 
must,  at  the  time  of  their  attestation,  (<?)  have  the 


(a)  Casson  v  Dade,  1  Bro.  C.  C.  241. 

99.  (d)  Hands  v.  James,  Com.  531. 

(b)  Ecclestonv.  Petty,  Carth.  79.  Brice  v.  Smith,  Willes,  1.  Croft  v. 
Broderick  v.  Broderick,  1  P.  Wms.  Pawlet,  Stran.  1109. 

239.    Machel  v.  Temple,  2  Show.  (e)  Pendock    d.    Mackinder    v. 

288.  Mackinder,  Willes,  665. 
(r)  Right  d.  Cator  v.  Price,  Doug. 


BY    DBVISEBS.  295 

use  of  their  reason,  (a)  be  sensible  of  the  obliga- 
tion of  an  oath,  (b)  and  unconvicted  of  any  infa- 
mous crime,  (c)  Formerly  a  devisee  taking  a  bene- 
ficial interest  under  the  will,  was  considered  not 
a  credible  witness  to  prove  its  execution  within 
the  intent  of  the  statute ;  (d)  but  doubts  being  en- 
tertained, whether  his  credibility  might  not  be  re- 
stored by  a  release,  payment,  or  extinguishment  of 
all  his  interest,  (e)  it  is  enacted  by  the  statute  25  G. 
II.  c.  6,  (after  reciting  that  it  had  been  doubted  who 
were  to  be  deemed  legal  witnesses  within  the  statute 
of  frauds,)  "  that  if  any  person  shall  attest  the  exe- 
"  cution  of  any  will  or  codicil  (to  whom  any  bene- 
"  ficial  devise,  legacy,  estate,  interest,  gift  or  ap- 
"  pointment,  affecting  any  real  or  personal  estate, 
"  except  charges  on  land,  &c.  for  payment  of  debts 
"  shall  be  given,)  such  devise,  legacy,  &c.  shall  so 
"  far  only  as  concerns  such  person  attesting  the 
"  execution,  or  any  person  claiming  under  him,  be 
"  utterly  null  and  void ;  and  such  person  shall  be 
"  admitted  as  a  witness  to  the  execution  of  such  will 
"  or  codicil,  within  the  intent  of  the  said  act,  not- 
"  withstanding  such  devise,  legacy,  &c.  And  in  case 
"  any  will  or  codicil  shall  be  charged  with  any  debt, 
*s  and  any  creditor,  whose  debt  is  so  charged,  shall 
"  attest  the  execution  of  such  will  or  codicil,  every 
"  such  creditor,  notwithstanding  such  charge,  shall 
"  be  admitted  as  a  witness  to  the  execution  of  such 


(a)  Gilb.  Evid.  109.  (d)  Billiard  v.  Jennings,  1  Ld. 

(6)  Hales,  P.  C.  2  vol.  279.—  Raym.505.    S.  C.  Com.  Rep.  91. 

Oraichund  v.  Barker,  Willes,  538.  (e)  Vide  Anstey   v.   Dowsing,  2 

(c)  SlGco.  III.  c.  35.     Chaterr.  Stran.  1253.    Wyndham  v.  Chet- 

Hawkins,  3  Lev.  426.  wynd,  1  Burr.  414. 


296  OF    THE    EVIDENCE 

"  will  or  codicil,  within  the  intent  of  the  said  act. 
"  Provided  always  that  the  credit  of  every  such  wit- 
(<  ness  so  attesting  the  execution  of  any  will  or  codi- 
"  cil,  in  any  of  the  cases  within  this  act,  and  all  cir- 
"  cumstances  relating  thereto,  shall  be  subject  to  the 
"  consideration  and  determination  of  the  Court,  and 
"  the  jury,  before  whom  any  such  witness  shall  be 
"  examined,  or  his  testimony,  or  attestation  made  use 
"  of,  in  like  manner  as  the  credit  of  witnesses  in  all 
<e  other  cases,  ought  to  be  considered  and  determin- 
"  ed."  The  provisions  of  this  statute  extend  only  to 
cases  where  the  attesting  witness  is  himself  the  de- 
visee or  legatee,  and  as  to  him,  and  any  person 
claiming  under  him,  it  makes  the  devise  or  legacy 
absolutely  void;  but,  they  do  not  extend  to  cases 
where  the  attesting  witness  is  the  husband  or  wife  of 
the  devisee  or  legatee,  (a)  and  a  will  has  been  held  to 
be  insufficiently  attested,  which  devised  to  the  wife  of 
one  of  the  subscribing  witnesses  a  reversion  in  fee, 
upon  the  determination  of  an  estate  for  life,  although  the 
wife  died  before  the  determination  of  the  life  estate  : 
the  interest  which  renders  an  attesting  witness  incom- 
petent under  the  statute,  being  an  interest  at  the  time 
of  the  attestation,  and  not  at  the  time  when  his  testi- 
mony is  required.  (#) 

An  executor,  and  also  the  wife  of  an  executor,  taking 
no  beneficial  interest  under  the  will,  are  credible 
witnesses  within  the  meaning  of  the  statute,  (c) 

(a)  Bettison  v.  Bromley,  12.  East.  589. 

250.  Hatfield  v.  Thorpe,  5  B.  &  A.  (c)  Phipps.  v.  Pitcher,  2  Mars. 

589.  20.     Bettison  v.  Bromley,  12  East. 

(6)  Hatfield  v.  Thorpe,  5  B.  &  A  250. 


BY    DEVISEES.  297 

The  result  of  the  foregoing  inquiry  seems  to  be, 
that  in  order  to  prove  a  will  duly  executed  within  the 
statute  of  frauds,  it  must  appear,  that  it  was  signed 
by  the  testator ;  that  it  was  published  by  him  in  the 
presence  of  three  or  more  credible  witnesses,  either 
at  the  same,  or  different  times ;  that  the  witnesses 
subscribed  their  names  respectively  in  the  presence 
of  the  testator ;  and  that  they  all  signed  the  same  in- 
strument. 

These  facts  must  be  proved  by  the  subscribing 
witnesses,  if  they  are  alive  and  can  be  produced. 
But  if  one  witness  can  prove  the  whole  execution, 
(as  that  the  testator  signed  in  the  presence  of  himself 
and  two  other  witnesses,  or  that  he  acknowledged  his 
signing  to  each  of  them,  and  that  each  of  the  wit- 
nesses subscribed  in  his  presence,)  this  will  be  suffi- 
cient proof  of  the  will,  without  calling  the  others,  (a) 
But  if  the  witness  who  is  called,  can  only  prove  his 
own  share  of  the  transaction,  as  must  happen  where 
the  testator  acknowledged  his  signing  to  the  witnesses 
separately,  the  other  witnesses  must  be  called.  If 
also  the  will  is  disputed  by  the  heir-at-law,  he  is 
always  entitled  to  the  testimony  of  all  the  subscribing 
witnesses;  but  then  he  must  produce  them  him- 
self, if  the  testimony  of  one  is  sufficient  for  the 
devisee. 

If  all  the  witnesses  are  dead,  or  insane,  or  out 

(a)  The  rule  is  different  in  equity ;  — Hinsdon  v.  Kersey,  4  Burn.  EC. 

and  when  a  bill  is  filed  in  Chancery  Law.  93.     Ogle  v.  Cook,  1   Vez. 

to  establish  a  will,  all  the  witnesses  177.    Townsend  v.  Ives,   1  Wils. 

must  be  examined  by  the  plaintiff.  216. 


OF    THE    EVIDENCE 

of  the  jurisdiction  of  the  Court,  proof  of  the  hand- 
writing of  the  devisor  and  witnesses,  or  of  the  devisor 
alone,  if  no  proof  of  the  handwriting  of  the  witnesses 
can  be  obtained,  will  be  sufficient  without  evidence 
of  the  solemnities,  (a) 

If  a  subscribing  witness  should  deny  the  execution 
of  the  will,  he  may  be  contradicted  as  to  that  fact  by 
another  subscribing  witness ;  (6)  and  even  if  they  all 
swear,  that  the  will  was  not  duly  executed,  the  devisee 
will  be  allowed  to  go  into  circumstantial  evidence  to 
prove  its  due  execution,  (c)  So  also  if  one  of  the 
subscribing  witnesses  impeach  the  validity  of  the  will 
on  the  ground  of  fraud,  and  accuse  other  witnesses 
who  are  dead,  of  being  accomplices  in  the  fraud, 
the  devisee  may  give  evidence  of  their  general  cha- 
racter, (d) 

When  an  ejectment  is  brought  by  the  devisee  of  a 
copyholder,  he  must  prove  his  own  admission,  and  the 
admission  of  his  testator ;  (e)  and  these  facts  will  be  suf- 
ficiently established,  by  producing  the  original  entries 
on  the  rolls  of  the  manor  by  the  proper  officer  (which 
entries  the  Courts  will  compel  the  lord  to  permit 
his  tenant  to  inspect,)  (f)  and  proving  the  identity  of 
the  parties  admitted,  (g)  without  also  producing  the 

(a)  Hands  v.  James,  Com.  531.  3  Esp.  284.     S.  C.  4  Esp.  50. 

Croft  v.  Pawlett,  Stran.  1109.  (e)  Roe  d.  JefFerey  v.  Hicks,  2 

(6)    Vide  Alexander  v.  Gibson,  2  Wils.  13.  Doe  d.  Vernon  v.  Vernon, 

Campb.  556.  7  East.  8.    Ante,  64. 

(c)  Lowe  v.  Jolliffe,  Blk.  365.  (/)  Folkardu.  Hemet,Blk.  1061^ 
Pike    v.  Badmering,  cited    Stran.  The  King  v.  Shelly,  3  T.  R.  141. 
1096.     Gilb.  Evid.  69.  B.N.P.  264.  (if)  Doe  rf.  Hanson  v.  Smith,  1 

(d)  Doe  d.  Walker  v.  Stephenson,      Campb.  197. 


BY    DEVISEES.  299 

stamped  copies  required  by  the  stat.  55  Geo.  III.  c. 
184.  (a)  The  will  of  the  devisor  must  likewise  be 
proved;  but  as  copyhold  lands  are  not  within  the 
statute  of  frauds,  it  will  be  sufficient  to  show  a  will  in 
writing,  (b)  although  it  be  neither  signed  by  the  tes- 
tator, nor  attested  by  any  witnesses,  (c)  Indeed  even 
short  notes  taken  by  an  attorney  for  the  purpose  of 
drawing  up  a  will,  where  the  party  died  before  the 
will  could  be  completed,  have  been  held  sufficient  to 
pass  copyhold  premises,  (d] 

It  has  been  said,  that  any  paper,  which  the  Ecclesi- 
astical Court  would  hold  to  be  a  will,  shall  be  suffi- 
cient to  pass  a  copyhold,  (e)  and  it  is  therefore  usual 
to  produce  the  probate,  as  well  as  the  original  paper- 
writing;  but  this  probate  does  not  appear  to  be 
necessary,  for  it  seems,  that  the  courts  of  common 
law  may  enter  into  the  question,  whether  the  paper 
amounts  to  a  will,  although  no  probate  has  in  fact 
been  granted.  (/) 

The  stat.  55  Geo.  III.  c.  192,  which  dispenses  with 
the  necessity  of  the  surrender  of  copyholds  to  the  use 
of  the  will  of  the  copyholder,  has  been  held  to  extend 
to  those  cases  only,  where  the  surrender  is  merely 
formal ;  and  therefore,  where  by  the  custom  of  a 
manor,  a  feme  covert  was  allowed  by  will  to  pass  her 


(a)  Doe  d.  Bennington  v.  Hall,  (rf)  1  Ander.  34,  85. 

16  East.  208.  (e)  Carey  v.  Askew,  2  Bro.  Cha. 

(b)  32  Hen.  VIII.  c.  1.  Rep.  58. 

(c)  Nash  v.  Edmunds,  Cro.  Eliz.  (./")  Doe  d.  Smith*.  Smith,  I'eakc 
100.     Doe  d.  Cook    v.  Danvers,  Evid.  456. 

7  East.  299. 


300  OF    THE    EVIDENCE 

copyholds,  the  same  having  been  previously  surren- 
dered by  the  husband  and  wife,  (the  wife  being 
examined  separate  and  apart)  and  the  wife  subse- 
quently to  the  statute  made  her  will,  but  without 
making  a  previous  surrender,  the  copyholds  did  not 
pass  ;  the  surrender  being  matter  of  substance,  and 
requiring  to  be  accompanied  by  the  separate  exami- 
nation of  the  wife,  (a) 

If  the  lessor  be  the  legatee  of  a  term  for  years,  he 
must  give  in  evidence  the  probate  of  the  will,  and 
prove  the  assent  of  the  executor  to  the  bequest ;  for 
where  a  person  bequeaths  either  specifically,  or  gene- 
rally, goods  or  chattels,  real  or  personal,  and  dies,  the 
legatee  cannot  take  them  without  the  assent  of  the 
executors,  (b)  He  must  also  prove  the  title  of  his 
testator,  and  show  that  he  had  a  chattel  and  not  a 
freehold  interest  in  the  premises;  because  when  a 
party  dies  in  possession,  it  is  presumed  that  he  is  seized 
in  fee  until  the  contrary  is  shown,  (c)  This  is  most 
commonly  done  by  the  production  of  the  lease :  but  in 
a  late  case  where  the  lessor  put  in  an  answer  of  the 
defendant  to  a  bill  in  equity,  in  which  the  defend- 
ant stated,  that  "he  believed  the  lessor  was  pos- 
sessed of  the  leasehold  premises  in  the  bill  men- 
tioned," it  was  held,  as  against  the  defendant,  sufficient 
evidence  that  the  interest  of  the  testator  was  only  a 
chattel  interest,  (d) 

When  the  lessor  of  the  plaintiff  claims  under  a 

(a)  Doe  d.  Nethercotc  v.  Bartle,  5         (c)  Ante. 

B.&A.492.  (d)  Doe  d.   Digby    v.    Steel,  3 

(6)  1  Inst.  Ill,  (a).    Ante,  71.      Canipb.  115. 


BY    TENANTS    BY   ELEGIT,   &XJ.  301 

will,  and  the  defendant  under  a  codicil,  the  validity  of 
which  is  the  question  between  them,  the  defendant, 
on  admitting  the  title  of  the  lessor,  has  a  right  to 
begin,  and  to  have  the  general  reply,  (a) 

Thirdly,  of  the  evidence  necessary  when  a  party 
claims  the  land  under  an  execution. 

When  an  ejectment  is  brought  by  a  tenant  by 
elegit,  (b)  and  the  debtor  is  himself  in  possession 
of  the  land,  the  only  evidence  necessary  is  an  ex- 
amined copy  of  the  judgment  roll,  containing  the 
award  of  the  elegit,  and  return  of  the  inquisition. 
But  if  the  possession  is  in  a  third  person,  the  lessor 
must  either  show  that  such  third  person  came  into 
possession  under  the  debtor,  and  that  his  right  to 
the  possession  has  ceased,  (c)  or  (should  the  party  in 
possesion  hold  adversely  to  the  debtor)  be  prepared 
with  evidence  of  his  debtor's  title,  (d)  It  is  not  neces- 
sary in  any  case  to  prove  a  copy  of  the  elegit  and 
inquisition,  (e) 

The  conusee  of  a  statute  merchant,  when  the  debtor 
is  in  possession,  must  prove  a  copy  of  the  statute,  of 
the  capias  si  laicus,  extent  and  liberate  returned  ;  for 
although  by  the  return  of  the  extent  an  interest  is 
vested  in  the  conusee,  yet  the  actual  possession  of 
that  interest  is  acquired  by  the  liberate,  (f)  The 

(a)  Doe  d.  Corbctt  «.  Corbett,  3      8  T.  R.  2. 

Camp.  368.  (e)  Ramsbottom  v.  Brickhurst,  'i 

(b)  Ante,  09.  109.  M.&S  565. 

(c)  Ante.  (./')  Hammond  v.  Wood,  2  Salk. 
(</)  Doe  d.  Da  Costa  v.  Wharton,  563. 


302  OF  THE    EVIDENCE 

same  proofs  are  also  necessary,  when  a  third  per- 
son is  in  possession,  as  in  the  case  of  a  tenant  by 
elegit.  (a) 

When  the  ejectment  is  to  recover  lands  taken  in 
execution,  under  a  writ  of  fieri  facias,  on  a  judgment 
obtained  against  a  termor,  if  the  party  in  the  ori- 
ginal action,  in  which  the  execution  issues,  is  the 
claimant,  the  judgment  must  be  proved,  (b)  But 
the  writ  alone  is  a  sufficient  title  to  the  vendee  of  the 
sheriff,  (c)  And  where  an  assignment  of  a  lease  by 
deed  taken  in  execution,  was  made  by  the  under- 
sheriff  in  the  name,  and  under  the  seal  of  office  of  the 
sheriff,  it  was  held  unnecessary  to  prove  his  au- 
thority, (d) 

Fourthly,  of  the  proofs  to  be  given,  when^the  claim- 
ant is  a  parson. 

When  a  parson  brings  ejectment  for  the  parsonage- 
house,  glebe,  or  tithes,  he  must  prove  his  admission, 
institution,  and  induction ;  (<?)  but  he  need  not  show 
a  title  in  his  patron,  for  institution  and  induction, 
although  upon  the  presentation  of  a  stranger,  are 
sufficient  to  put  the  rightful  patron  to  his  quare 
impedit.(f) 

Presentation  may  be  by  parol,  or  by  writing  in 

(a)  Ante,  301.  (d)  Doe  d.  James  v.  Brown,  5  E. 

(b)  Doe  d.  Bland  v.   Smith,   2      &  A.  243. 

Star.  199.     S.  C.  Holt.  589.  (e)  Snow  d.  Crawley  v.  Phillips,  1 

(c)  Doe  d.  Batten  v.  Murless,  6      Sid.  220. 

M.&S.  113.     Et  vide  Doe  d.  Em-          (/)  B.  N.  P.  105. 
met  v.  Thorn,  1M.  &  S.  425. 


BY    RECTORS,  &C.  303 

the  nature  of  a  letter  to  the  bishop ;  (a)  in  the  latter 
case  it  may  be  proved  by  production  of  the  letter ;  in 
the  former  by  a  witness  who  was  present  and  heard 
it;  but  it  cannot  be  proved  by  the  person  making 
the  presentation,  although  he  were  only  grantee  of 
the  avoidance.  (6)  The  ceremony  of  institution  may 
be  proved  by  the  letters  testimonial  of  institution ; 
or  by  the  official  entry  in  the  public  register  of  the 
diocese,  which  ought  regularly  to  record  the  time  of 
the  institution,  and  on  whose  presentation  it  was 
given.  This  entry,  therefore,  if  regularly  made,  is 
proof  of  the  presentation,  as  well  as  of  the  institution. 
The  induction  may  be  proved,  either  by  some  person 
present  at  the  ceremony,  or  by  the  indorsement  on 
the  mandate  of  the  ordinary  to  induct,  or  by  the 
return  of  the  mandate,  if  any  has  been  made,  (c) 

Proof  was  formerly  required  that  the  claimant  had 
read  and  subscribed  the  thirty-nine  articles,  according 
to  the  statute,  and  declared  his  assent  and  consent 
to  all  things  contained  in  the  book  of  common  prayer; 
but  this  is  no  longer  held  to  be  necessary,  unless 
some  ground  be  laid  by  the  defendant  to  show,  that 
he  has  not  complied  with  these  requisites ;  because 
the  presumption  is,  that  every  man  has  conformed 
to  the  law,  until  there  be  some  evidence  to  the 
contrary,  (d) 

Entries  made  by  a  deceased  rector  in  his  books, 

(a)  Co.  Lilt.  120,  (a).     B.  N.  P.         (c)    Chapman  v.  Beard,  3  Ans. 
105.    The  Kingw.  Eriswcll,3T.  R.      942. 

723.  (d)  Powell  v.  Milburn,  3  Wils. 

(b)  B.  N.  P.  105.  355.  S.  C.  2  Black.  85 1. 


304  OP    THE    EVIDENCE 

may  be  given  in  evidence  by  his  successor,  (a)  upon  a 
question  of  tithes ;  and  he  is  also  entitled  to  give  in 
evidence  such  terriers  as  have  been  regularly  made 
and  preserved  in  the  proper  repository ;  that  is  to  say, 
such  terriers  as  are  signed  by  a  churchwarden,  or  (if 
the  churchwardens  are  nominated  by  the  parson)  by 
some  of  the  substantial  inhabitants  of  the  parish,  (b) 
and  are  found  either  in  the  bishop's  register  office,  (c) 
or  in  the  register  of  the  archdeacon  of  the  diocese.  (cT) 
It  is  not  necessary  that  the  terrier  should  be  signed 
by  the  parson;  but,  unless  it  possesses  the  marks  of 
authenticity  above  mentioned,  it  cannot  in  general  be 
received  in  evidence.  But  where  a  terrier  was  found 
in  the  registry  of  the  dean  and  chapter  of  Lichfield, 
it  was  admitted  in  evidence  against  one  of  the  pre- 
bendaries, upon  the  principle  that  there  appeared  to 
be  a  proper  connexion  between  the  terrier,  and  the 
place  where  it  was  found,  (e) 

An  ejectment  for  a  parsonage  and  glebe,  will  not 
be  supported,  by  showing  that  the  defendant  entered 
and  took  the  tithes  belonging  thereto ;  because  the 
tithes  and  the  rectory  are  not  the  same.  (/) 

When  a  lay  impropriator  brings  an  ejectment  for 
tithes,  the  strict  proof  of  title  is  to- show  that  the 
rectory  originally  belonged  to  one  of  the  dissolved 


(a)  Glynn  v.  Bank  of  England,  1406. 

2  Vez.  38.  43.     Roe  d.  Brune  v.         (tf)    Potts  v.  Durant,  4   Gwill. 

Rawlings,  7  East.  279.290.  1050.  1054. 

(6)  B.  N.  P.  248.     Earlu.  Lewis,          (e)  Miller  v.  Foster,  4  Gwill.  1406. 
4  Esp.  3.  (/)  Hem  v.  Stroud,  Latch.  61. 

(r)   Atkins   v.  Hatton,  4  Gwill. 


BY   ASSIGNEES   OF    BANKRUPTS,  &C.  305 

monasteries,  and  was  granted  by  the  crown  to  those 
under  whom  he  claims  ;  (a)  but,  as  deeds  and  instru- 
ments are  liable  to  be  lost,  length  of  possession,  and 
old  deeds  conveying  tithes,  have  been  deemed  suffi- 
cient evidence  of  title,  (b) 

Fifthly,  of  the  proofs  required,  when  the  action  is 
brought  by  a  guardian,  for  the  lands  of  an  infant. 

If  the  claimant  be  a  guardian  in  socage,  (c)  he  must 
prove  the  seizin  of  the  person  from  whom  his  ward 
claims;  (d)  the  heirship  of  the  ward ;  that  he  was 
under  the  age  of  fourteen  years  at  the  time  of  the 
demise  in  the  declaration ;  and  that  amongst  those 
relations  to  whom  the  inheritance  cannot  descend, 
he  himself  is  the  next  of  blood  to  the  ward,  (e) 

If  the  claimant  be  a  testamentary  guardian  ap- 
pointed by  stat.  12  Car.  II.  c.  24.  s.  8,  he  must  prove 
the  seizin  of  the  father;  the  due  execution  of  the  deed 
or  will,  which  appoints  him  guardian ;  and  the  mi- 
nority of  the  ward  at  the  time  of  the  demise. 

Sixthly,  of  the  proofs  required  by  persons  claiming 
in  a  representative  character,  that  is  to  say,  by  as- 
signees of  bankrupts,  or  insolvent  debtors,  (/)  and 
by  executors  and  administrators,  (g} 

Assignees  of  a  bankrupt  must  prove  the  title  of  the 

(a)  Vide  Com.  651.  (e)  Litt.  Sec.  123.    Doe  £  Iligge 

(6)  Kinaston  v.  Clarke,  5  T.  R.      v.  Bell,  5  T.  R.471. 
265,  in  not  is.  (f)  Ante,  70.  * 

(c)  Ante,  66.  (  g  )  Ante,  67. 

(d)  Ante,  28. 


OF    THE    EVIDENCE 

bankrupt  to  the  premises,  as  when  the  bankrupt  him- 
self is  the  lessor  of  the  plaintiff;  and  if  the  lands  are 
freehold,  they  must  prove  the  bargain  and  sale  to 
them  by  the  commissioners,  and  its  enrolment,  (a) 
Their  representative  character  as  assignees  must  be 
proved  in  the  same  manner,  and  subject  to  the  same 
rules,  as  in  other  actions,  (b) 

The  assignee  of  an  insolvent  debtor,  after  proving 
the  title  of  the  insolvent,  is  only  required  to  produce  a 
copy  of  the  record  of  the  conveyance  and  assignment 
to  such  assignee,  as  filed  in  the  Insolvent  Court ;  but 
such  copy  must  be  written  on  parchment,  and  pur- 
port to  have  the  certificate  of  the  provisional  as- 
signee of  the  Court,  or  his  deputy,  indorsed  there- 
on, and  be  sealed  with  the  seal  of  the  Court.  (<?) 

When  an  ejectment  is  brought  by  a  personal  re- 
presentative, he  must  show  his  representative  cha- 
racter by  producing  the  probate  of  the  will,  or  letters 
of  administration,  or  the  book  of  the  Ecclesiastical 
Court,  wherein  they  are  entered,  (d)  in  addition  to  the 
proof  of  his  testator's,  or  intestate's,  title. 

Seventhly,  of  the  proofs  by  mortgagees,  (e) 

When  the  lessor  of  the  plaintiff  is  the  mortgagee  of 
the  premises,  and  the  mortgagor  is  himself  the  defend- 
ant, proof  of  the  due  execution  of  the  mortgage  deeds 

(a)  Esp.  N.  P.  431.438.     Doerf.  (d) Garret v. Lister,  1  Lev. 25.  Elden 

Marsacku.  Read,  12  East.  57.  «.Keddell,8  East.  187.  GW.B.N.  P. 

(6)  6  Geo.  IV.  c.  16.  s.  90.  92.  108. 

(r)  7  Geo.  IV.  c.  57.  s.  19  ;  1  Wm.  (e)  Ante,  CO. 
IV.  c.  38.  s.  1. 


BY    A    LORD    OP    A    MANOR.  307 

is  the  only  evidence  required,  (a)  If  the  ejectment 
be  against  a  third  person,  who  holds  the  mortgaged 
lands  as  tenant  to  the  mortgagor,  it  will  be  ne- 
cessary, in  addition  to  the  proof  of  the  mortgage 
deeds,  to  give  evidence  of  such  tenancy,  and  either 
of  its  regular  determination,  or  that  it  was  created  by 
the  mortgagor  subsequently  to  the  execution  of  the 
mortgage  deed,  (b)  Proof  of  the  title  of  the  mort- 
gagor is  only  necessary  when  the  defendant  holds  the 
land  adversely  to  such  title. 

The  proofs  are  the  same  when  the  assignee  of  a 
mortgagee  is  the  claimant,  with  the  additional  proof  of 
the  derivative  title  of  the  assignee  from  the  mortgagee. 

Eighthly,  of  the  proofs  by  a  lord  of  a  manor,  and 
by  copyholders. 

When  a  lord  seizes  the  land  as  forfeited  pro  de- 
fec/u  tenentis,  if  he  seize  absolutely,  he  must  prove  a 
custom  in  the  manor  entitling  him  to  do  so ;  but  if  he 
seize  only  quonsque,  the  custom  need  not  be  proved ; 
and  an  absolute  seizure  unwarranted  by  th  ecustom, 
cannot  afterwards  be  set  up  as  a  seizure  quousque.  (c) 
He  must  also  prove  that  the  regular  proclamations  have 
been  made,  and  in  one  report  of  Lord  Salisbury's 
case,  (c)  it  is  said,  that  the  proclamations  must  be 
proved  by  vivd  voce  evidence,  and  that  the  entry 
thereof  on  the  court  rolls  is  not  sufficient ;  but  no 

(a)  Ante,  108.  R.  378.      Doe  d.  Clark  v.  Trap- 

(t)    Keech   v.  Hall,  Doug.   21.  paud,  1  Stark.  281. 

Thunder  d.  Weaver  v.  Belcher,  3  (c)  Lord  Salisbury's  case,  1  Lev. 

East.  449.     Birch   v.  Wright,  1  T.  C3,  S.  C.  1  Keb.  287. 

x  2 


308  OF    THE    EVIDENCE 

mention  is  made  of  this  point  in  the  other  report  of 
the  same  case,  nor  does  it  appear  in  a  modern  similar 
decision,  that  any  evidence  of  this  nature  was  re- 
quired, (a) 

When  the  lord  of  a  manor  brings  an  ejectment 
for  a  forfeiture,  he  must  prove  that  he  was  lord  at 
the  time  of  the  forfeiture  committed  (unless  the  act  of 
forfeiture  destroys  the  estate,  in  which  case,  the  heir 
of  such  lord  may  also  take  advantage  of  it,)  (#)  and 
that  the  person,  who  is  alleged  to  have  committed  the 
forfeiture,  has  been  admitted  tenant  on  the  rolls  of  the 
manor.  Proof  of  the  admittance  of  the  father,  and 
of  the  descent  to  the  copyholder  as  son  and  heir,  and 
payment  of  quit-rents  by  him,  will  not  be  sufficient 
evidence:  the  tenant  must  be  himself  admitted,  for 
nothing  vests  in  a  copyholder  which  he  can  forfeit, 
before  admittance  and  entry.  The  act  of  forfeiture 
must  of  course  also  be  proved ;  but  proof  is  not  re- 
quired of  the  presentment  of  the  forfeiture,  nor  of 
the  entry,  or  seizure  of  the  lord ;  (c)  nor  will  the 
defendant  be  allowed,  having  been  admitted  and 
done  fealty,  to  show  that  the  legal  estate  was  not  in 
the  lord  at  the  time  of  admittance,  (d) 

A  lord  of  a  manor  cannot  maintain  ejectment  for 
mines  upon  his  manor,  without  proof  that  he  has 
been  actually  possessed  of  them  within  the  last  twenty 

(a)  Doed.Tarrantu.  Hellier,3T.  11  East.  56.  B.N.P.  108.  Et  vide 

B.  162.  Watk.  Copy,  v.  i.  324  to  353. 

(6)  Ante,  61.  (d)  Doe  d.  Nepean  u.  Budden,  5  B. 

(c)  Roe  d.  Jeffreys  v.  Hicks,  2  &  A.  626. 
Wils.  13.  Doe  d.  Foley  v.  Wilson, 


BY    COPYHOLDERS.  309 

years ;  because  they  are  a  distinct  possession  from 
the  manor,  and  may  be  of  different  inheritances,  (a) 
And  a  verdict  in  trover,  for  lead  dug  out  of  them, 
will  not  be  evidence  of  the  possession  of  the  mines ; 
for  trover  may  be  brought  on  property  without  pos- 
session, (b) 

The  doctrine  of  presumption  extends  to  copyhold 
lands,  and  upon  proper  evidence  an  enfranchise- 
ment of  them  may  be  presumed  even  against  the 
crown,  (c) 

When  an  ejectment  is  brought  by  the  surrenderee 
of  copyhold  lands,  he  must  prove  the  surrender  to 
his  use,  and  his  subsequent  admittance;  but  it  is 
immaterial  whether  the  admittance  be  before  or  after 
the  day  of  the  demise  in  the  declaration,  (d) 

But  where  the  lessor  claims  as  heir,  or  under  a 
grant  of  a  reversion  by  the  lord  expectant  on  a  life 
estate,  proof  of  admittance  is  unnecessary,  (e) 

When  the  lessor  of  the  plaintiff  is  the  lessee  for 
years  of  a  copyholder,  he  must,  after  proving  his 
lessor's  title,  show  either  a  special  custom  in  the 
manor,  allowing  the  copyholder  to  make  leases  for 
years,  or  that  the  licence  of  the  lord  was  obtained 
before  the  lease  was  granted.  (/*) 

(a)  Rich  v.  Johnson,  Stran.  1142.  (e)  Ante,  64.     Roe  d.  Cosh    v. 

(6)  R.  N.  P.  102.  Loveless,  2  B.  &  A.  453. 

(c)  Roe  d.  Johnson  w.  Ireland,  (/)  Co.  Copy.  s.  5 1.2.   Watkins 
1 1  East.  220.  on  Copyhold,  30. 

(d)  Ante,  64. 


310  OF    THE    EVIDENCE 

We  must  now  consider  the  proofs  required  when 
a  privity  exists  between  the  defendant  and  lessor  of 
the  plaintiff,  or  those  under  whom  he  claims. 

When  such  privity  exists,  the  claimant  instead  of 
proving  his  title,  must  show  the  existence  and  termi- 
nation of  the  privity ;  for  a  privity  will  not  be 
presumed  to  exist  without  proof,  but  being  proved 
the  presumption  is  in  favour  of  its  continuance. 
Thus,  if  the  defendant  be  let  into  possession  pending 
a  negociation  for  a  purchase  or  a  lease,  proof  must 
be  given  that  he  was  so  let  into  possession,  and  that 
the  negociation  was  broken  off  before  the  day  of  the 
demise  in  the  ejectment,  (a)  In  like  manner  if  he 
has  become  tenant  at  will  of  the  premises,  the  lessor 
must  show  how  he  became  so,  and  that  the  will  was 
determined  by  demand  of  possession  or  otherwise,  and 
so  forth,  (a) 

When  the  relation  of  landlord  and  tenant  regularly 
subsists  between  the  parties,  or  those  under  whom 
they  claim,  which  is  commonly  the  case  in  ejectments 
of  this  nature,  the  tenancy  may  be  determined  as  we 
have  already  observed,  (6)  in  three  several  ways. 
First,  by  the  efflux  of  time,  or  the  happening  of  a 
particular  event.  Secondly,  by  a  notice  from  the 

(a)  Ante,  121. — In  a  case,  where  the  lease  against  an  ejectment  about 

the   landlord    by  his    own  negli-  to  be  brought  by  his  landlord,  al- 

gence,  suffered  a  third  person   to  though  only  one    year  and  three 

recover  in  ejectment    against   his  quarters  of   the  term   was  unex- 

tenant,  who  held  under  a  lease,  pired. — Baker  v.  Mellish,  10  Ves. 

and  who    attorned  to  such  third  544.  Et  vide  Doe  d.  Powell  v.  King, 

person,  the  Court  of  Chancery  re-  Forrest.  19. 

strained  the  tenant  from  setting  up  (6)  Ante,  104. 


BY    LANDLORDS.  311 

landlord  to  the  tenant  to  deliver  up  the  possession,  or 
vice  versd ;  and,  thirdly,  by  a  breach  on  the  part  of 
the  tenant  of  any  condition  of  his  tenancy,  as  by  the 
non-payment  of  rent,  or  non-performance  of  a  cove- 
nant. 

When  the  tenancy  is  determined  by  the  efflux  of 
time,  if  the  demise  be  by  deed,  or  other  writing,  the 
lessor  has  only  to  prove  the  counterpart  of  the  lease 
by  one  of  the  subscribing  witnesses ;  and  it  is  not 
necessary  that  he  should  have  given  notice  to  the 
tenant  to  produce  the  original  lease,  to  enable  him  so 
to  do.  (a)  If  there  is  no  counterpart,  notice  to  pro- 
duce the  original  lease  should  be  given,  and  then,  but 
not  otherwise,  the  claimant  will  be  entitled,  if  the  ori- 
ginal lease  be  not  produced,  to  give  secondary  evi- 
dence of  its  contents.  If  the  demise  be  by  parol,  the 
agreement  may  be  proved  by  any  person  present  at 
the  making  of  it  j  but  if  it  should  appear  on  the  trial 
by  the  witnesses  on  the  part  of  the  plaintiff,  that  a  writ- 
ten agreement  has  at  any  time  been  drawn  up  between 
the  lessor,  and  the  party  under  whom  the  defendant 
came  into  possession,  it  must  be  produced  by  the 
plaintiff,  (b)  It  is  not  necessary  for  the  lessor  to  prove 
that  he,  or  those  under  whom  he  claims,  has  received 
the  reserved  rent  within  the  last  twenty  years,  (c) 

Where  the  tenancy  is  determined  by  the  happening 
of  a  particular  event,  the  lessor  must  of  course  also 


(a)  Roed.  West  v.  Davis,  7  East.      6  Bing.  533. 

363.  (r)  Orrell  v.  MaddoXjllunn.Eject. 

(6)  Fenn  d    Thomas  «.  Griffith,      Appen.  438. 


312  OF   THE    EVIDENCE 

prove,  that  the  event,  upon  which  the  tenancy  is  to 
determine,  has  happened. 

When  the  tenancy  expires  by  reason  of  a  notice  to 
quit,  the  lessor  must  prove  the  tenancy  of  the  defend- 
ant, the  service  of  the  notice  and  its  contents,  (and  if 
given  by  an  agent,  the  agent's  authority,)(«)and  that  the 
notice  and  the  year  of  the  tenancy  expire  at  the  same 
time.  When  also  the  notice  is  for  a  shorter  period 
than  half  a  year,  or  expires  at  any  other  period  than 
the  end  of  the  year  of  the  tenancy,  it  will  be  neces- 
sary to  show  the  custom  of  the  country  where  the 
lands  lie,  or  an  express  agreement,  by  which  such  no- 
tice is  authorised.  (£) 

The  tenancy  of  the  defendant  is  commonly  ad- 
mitted, and  may  be  proved  when  necessary,  if  no 
direct  evidence  can  be  given  of  the  demise,  by  de- 
clarations on  the  part  of  the  tenant,  the  fact  of  pay- 
ment of  rent  (and  it  is  advisable  to  give  the  tenant 
notice  to  produce  his  receipts)  or  the  like. 

The  service  of  the  notice,  (c)  and  the  authority  to 
serve  it,  will  be  proved  by  the  person  who  delivered 
it  to  the  tenant ;  but  if  there  is  a  subscribing  witness 
thereto,  such  subscribing  witness  must  also  be  called,(flT) 
although  it  should  happen  that  he  only  witnessed  the 
signature  of  the  landlord,  and  did  not  deliver  the 
notice  himself.  The  contents  of  the  notice  may  be 
proved  by  a  duplicate  original,  which  should  be  com- 

(a)  Ante,  126.  (<0  Doe.  d.  Sykes   v.  Durnford, 

(6)  Ante,  140.  2  M.  &  S.  62. 

(<•)  Ante,  133. 


BY  LANDLORDS.  313 

pared  with  the  notice  actually  seved,  by  the  party 
serving  it;  but  if  this  precaution  is  not  taken,  parol 
evidence  may  be  given  of  its  contents ;  and  it  is  not 
necessary  in  either  case,  to  give  the  defendant  notice 
to  produce  the  original  in  his  possession,  (a) 

When  the  notice  is  given  by  an  agent,  it  must  be 
shown  that  he  was  vested  with  his  authority  at  the 
time  the  notice  was  given,  (b)  And  where  two  or 
more  joint  tenants,  &c.,  are  lessors  of  the  plaintiff, 
and  a  notice  to  quit  is  given  by  one  or  more  in  the 
name  of  all,  although  they  all  afterwards  join  in  an 
ejectment,  it  will  not  be  presumed,  from  that  circum- 
stance, that  an  authority  was  originally  given  by  the 
parties  not  joining  in  the  notice,  to  their  co-tenants.(c') 
But  where  a  notice  to  quit  was  given  by  the 
steward  of  a  corporation,  it  was  presumed,  inasmuch 
as  he  was  an  officer  of  the  corporation,  that  he  had 
an  authority  to  give  the  notice,  (d) 

When  the  tenant  has  been  long  in  possession  of 
the  premises,  it  frequently  becomes  extremely  difficult 
to  prove  the  time  of  his  original  entry ;  but  never- 
theless, some  evidence  must  be  given,  from  which  the 
jury  may  presume  that  the  time  of  the  expiration  of 
the  notice  and  of  the  year  of  the  tenancy  are  the 
same,  or  the  plaintiff  will  be  nonsuited. 

If  the  tenant  has  been  applied  to  by  his  landlord 
respecting  the  time  of  the  commencement  of  his  te- 

(a)  Jory».  Orchard,  2  B.&  P.  41.         (d)  Roe  d.  Dean  of  Rochester  ». 
(6)  Ante,  126.  Pearce,  2  Caropb.  96. 

(c)  Ante,  126.  (note  b.) 

& 


314  OP    THE    EVEDENCE 

nancy,  and  has  informed  him  that  it  began  on  a  cer- 
tain day,  and  in  consequence  of  such  information,  a 
notice  to  quit  on  that  day  is  given  at  a  subsequent 
period,  the  evidence  is  conclusive  upon  the  tenant, 
and  he  will  not  be  permitted  to  prove  that  in  point  of 
fact  the  tenancy  has  a  different  commencement :  nor 
is  it  material  whether  the  information  be  the  result  of 
design  or  ignorance,  as  the  landlord  is  in  both  in- 
stances equally  led  into  an  error,  (a)  When  also  the 
tenant  at  the  time  of  the  service  of  the  notice  assents 
to  the  terms  of  it,  he  will  be  precluded  from  showing 
that  it  expires  at  a  wrong  time.  But  such  assent 
must  be  strictly  proved;  and  in  a  case  where  the 
party  made  no  objection  to  the  notice  at  the  time  of 
its  delivery,  but  said,  "  I  pay  rent  enough  already,  it 
is  hard  to  use  me  thus ;''  it  was  held  that  these  cir- 
cumstances were  not  sufficient  to  prevent  him  from 
showing  the  time  when  the  tenancy  actually  com- 
menced. (6) 

When  a  notice  to  quit  upon  any  particular  day,  is 
served  upon  the  tenant  personally,  if  he  read  its  con- 
tents, or  they  be  explained  to  him,  without  any  ob- 
jection being  made  on  his  part,  as  to  the  time  of  the 
expiration  of  the  notice,  it  will  be  primd  facie  evi- 
dence of  a  holding  from  the  day  mentioned  in  the 
notice,  (c)  In  like  manner,,  a  receipt  for  a  year's 
rent  up  to  a  particular  day,  is  primd  facie  evidence 


(a)  Doe  d.  Eyre  v.  Lambley,  2  (c)  Thomas  d.  Jones  u.  Thomas, 

Esp.  635.  2  Campb.  647.  Doe  d.  Clarges  v. 

(6)  Oakapple  d.  Green  v.  Copous,  Foster,  13  East.  405.  Doe  d.  Lei- 

4  T.  R.  361.  cester  v.  Biggs,  2  Taunt  109. 


BY    LANDLORDS.  315 

of  a  holding  from  that  day.  (a)    But  if  the  notice  be 
not  delivered  personally,  or  be  not  read  over  or  ex- 
plained to  the  party,  no  such  presumption  will  arise, 
although   a  contrary   doctrine   was   formerly   main- 
tained, (b)     When  also  the  notice  is  to  quit  generally 
at  the  expiration  of  the  current  year  of  the  tenancy, 
&c.  (c)  no  presumption  can  arise,  as  to   the  time  ot 
the  commencement  of  the  tenancy,  from  a  personal 
delivery  to  the  tenant.     But  where  a  general  notice 
was  delivered  on  the  22d  of  March,  to  quit  at  the 
expiration  of  the  current  year,  &c.  and  on  the  16th  of 
January  following,  a  declaration  in  ejectment  was  de- 
livered to  the  tenant,  laying  the  demise  on  the  1st  of 
November,  and  the  tenant  on  the  receipt  of  this  de- 
claration made  no  objection  to  the  notice  to  quit,  nor 
set  up  any  right  to  the  possession  of  the  premises, 
but  said  he  should  go  out  as  soon  as  he  could  suit 
himself  with  another  house,  it  was  ruled  by  Lord 
Ellenborough,  C.  J.  that  the  defendant's  declaration, 
when  served  with  the  ejectment,  was  evidence  to  go 
to  the  jury,  whether  the  holding  was  a  Michaelmas 
holding,  and  the  jury  found  a  verdict  for  the  land- 
lord. (W)     And  in  a  case  where  the  notice  was  de- 
livered on  Sept.  27,  to  quit  "  at  the  expiration  of  the 
term  for  which  you  hold  the  same,"  which  notice  was 
served  personally  upon  the   tenant,  who  observed, 
"  I  hope  Mr.  M.  does  not  mean  to  turn  me  out," 
Holroyd,  J.  permitted  the  lessor  to  prove,  that  it  was 
the  general  custom,  in  that  part  of  the  country  where 

(a)  Doed.  Castleton  v.  Samuel,  2  Campb.  387. 

5  Esp.  174.  (c)  Ante,  142. 

(6)  Doe  d.  Puddtcombe  v.  Harris,  (d)  Doe  d.  Baker  v.  Wombwell> 

1  T.  R.  161.  Doe  d  Ash  v.  Calvert,  2  Campb.  559. 


316  OP    THE    EVIDENCE 

the  demised  lands  lay,  to  let  the  same  from  Lady-day 
to  Lady- day,  and  that  the  defendant's  rent  was  due 
at  Michaelmas  and  Lady-day  respectively.,  and  di- 
rected the  jury  to  presume,  that  this  tenancy,  like 
other  tenancies  in  that  part  of  the  country,  was  a  te- 
nancy from  Lady-day  to  Lady-day,  (a) 

When  the  ejectment  is  brought  upon  a  clause  of 
re-entry  for  non-payment  of  rent,  if  the  proceedings 
are  at  common  law,  the  lessor  must  prove  the  lease, 
or  counterpart,  (b)  and  that  the  rent  has  been  de- 
manded with  all  the  formalities  mentioned  in  a  pre- 
ceding chapter,  (c)  If  the  case  falls  within  the  pro- 
visions of  the  statute  4  Geo.  II.  c.  28,  instead  of 
proving  a  demand  of  rent,  he  must  show  that  six 
months  rent  is  in  arrear,  and  that  there  is  not  a  suf- 
ficient distress  upon  the  premises,  (d)  In  order  to 
prove  the  latter  fact,  evidence  must  be  given  that 
every  part  of  the  premises  has  been  searched ;  and 
in  a  case  where  the  party  who  was  about  to  make  the 
distress,  omitted  to  enter  a  cottage  upon  the  premises, 
the  Court  considered  the  search  insufficient,  (e)  But 
if  the  lessor  show  that  he  was  prevented  by  the  de- 
fendant from  entering  on  the  premises,  proof  that 
there  was  no  sufficient  distress  will  be  dispensed 
with.  (/) 


(a)  Doe  d.  Milnes  v.  Lamb,  Not-  (d)  Ante,  162. 

tingham  Summer  Assizes,  1817. —  (e)  Doe  d.  Powell  v.  King,  For- 

MS.  rest.  19. 

(6)  Roe  d.  West  v.  Davis,  7  East.  (/)  Doec?.  Chippendale  v.  Dyson, 

363.  1  M.  &  M.  77. 

(c)  Ante,  160. 


BY    LANDLORDS.  317 

The  search  must,  of  course,  be  made  after  the 
time  when  the  rent  became  due,  and  also  after  the 
expiration  of  the  time  when  it  was  payable  to  save  the 
forfeiture ;  («)  but  it  is  not  necessary  for  the  plaintiff 
to  prove  that  there  was  no  sufficient  distress  upon  the 
premises,  throughout  the  whole  period  of  time  during 
which  the  rent  has  been  in  arrear.  If  he  proves  that 
on  any  one  day,  from  the  time  when  the  rent  became 
due,  to  the  day  of  the  demise  in  the  declaration,  there 
was  no  sufficient  distress,  it  will  entitle  him  to  a  ver- 
dict. And  even  if  he  proves  an  insufficient  distress, 
on  some  day  after  the  day  of  the  demise ;  as,  for  ex- 
ample, on  some  day  in  May,  (the  demise  being  laid 
on  May  2,)  it  will  be  sufficient  primd  facie  evidence 
to  call  upon  the  defendant  to  show,  that  there  was 
a  sufficient  distress  upon  the  premises  within  the  terms 
of  the  proviso.  (#) 

It  is  not  necessary  that  the  amount  of  rent  proved  to 
be  due,  should  correspond  with  the  amount  stated  in 
the  particulars  of  breaches  delivered  by  the  plaintiff.(c) 

When  the  ejectment  is  for  the  breach  of  any  other 
covenant,  the  lessor  must  show  the  covenant  broken, 
by  the  same  evidence  as  in  an  action  of  covenant ; 
and  if  he  has  been  ordered  by  the  Court  to  give  to  the 
tenant  particulars  of  the  breaches  upon  which  he 
means  to  rely,  he  will  be  precluded  from  giving  in 
evidence  different  breaches  from  those  contained  in 
the  particulars. 

(a)  Ante,  161.  (c    Tenny  d.  Gibbs  v.  Moody,  3 

(b)  Doe  d.  Smalt  v.   Fuchau,  15    Bing.  3. 
East.  286. 


318  OF    THE    EVIDENCE 

In  an  ejectment  on  a  proviso  for  re-entry,  for  breach 
of  covenant  not  to  assign  or  let  the  premises,  it  was 
ruled  by  Lord  Alvanley,  C.  J.,  that  if  a  person  was 
found  in  possession  acting  and  appearing  as  tenant, 
it  was  sufficient  primd  facie  evidence  of  an  under- 
letting to  call  upon  the  defendant  (the  lessee)  to  show 
in  what  character  such  person  was  upon  the  pre- 
mises ;  and  that  the  declarations  of  such  person  were 
admissible  in  evidence  against  the  lessee,  (a)  But  in 
a  subsequent  case,  upon  similar  evidence  of  posses- 
sion, (accompanied,  indeed,  by  a  declaration  of  the 
party  that  he  had  taken  the  premises  from  a  third  per- 
son, but  which  does  not  seem  to  form  the  ground  of 
the  decision)  Lord  Ellenborough,  C.  J.,  directed  a 
nonsuit;  observing,  that  upon  such  evidence,  non 
constat,  that  the  party  was  not  a  tortious  intruder, 
that  it  was  incumbent  on  the  lessor  to  prove  that  the 
lessee  had  either  assigned  m  let,  and  that  the  evi- 
dence produced  would  not  be  sufficient,  even  if  the 
lessee  had  covenanted  not  to  part  with  the  posses- 
sion. (£) 

If  the  claimant  is  the  assignee  of  the  reversion, 
after  proving  the  forfeiture,  evidence  must  be  given 
that  he  was  entitled  to  the  reversion  at  the  time  the 
forfeiture  was  committed,  (<?)  and  if  possible  of  the 
mesne  assignments  from  the  original  lessor.  These 
mesne  assignments,  however,  will  be  presumed,  if  the 
original  lease  be  for  a  long  term,  and  the  possession  of 
the  assignee  has  continued  for  a  considerable  time,  (d) 

(a)  Doe  d.  Hindley  v.  Rickarby,         (c)  Ante,  72. 
5  Esp.  4.  (d)  Earl  d.  Goodwin  v.  Baxter, 

(6)  Doe  v.  Payne,  1  Star.  86.  Blk.  1228. 


BY    THE    DEFENDANT.  319 

Lastly ;    Of  the  evidence  on  the  part  of  the  de- 
fendant. 

The  principle  that  a  claimant  in  ejectment  must 
recover  on  the  strength  of  his  own  title,  is  now  so 
clearly  established  that  little  can  be  said  respecting 
the  evidence  necessary  on  the  part  of  the  defendant. 
The  lessor  of  the  plaintiff  must  always,  in  the  first  in- 
stance, make  out  a  clear  and  substantial  possessory 
title  to  the  premises  in  question  ;  and  the  defendant's 
evidence  is  altogether  confined  to  falsifying  his  ad- 
versary's proofs,  or  rebutting  the  presumptions  which 
may  arise  out  of  them.     He  needs  not  show  that  he 
has  himself  any  claim  whatever  to  the  premises,  nor 
even  give  evidence  of  a  title  in  a  third  person  ;  it  is 
sufficient  if  he  make  it  appear  to  the  jury,  that  a  legal 
and  possessory  title  does  not  subsist  in  the  plaintiff's 
lessor.     Thus,  when  the  lessor  claims  as  heir,  he  may 
show  a  devise  by  the  ancestor  to  a  stranger ;  that  by 
a  particular  custom  another,  and  not  the  claimant,  is 
the  heir ;  that  the  claimant  is  a  bastard ;  or  any  other 
circumstances  which  will  invalidate  his  title.     In  like 
manner  when  the  lessor  claims  as  devisee,  the  de- 
fendant  may  show,  that   the  will  was  obtained  by 
fraud ;  that  it  was  not  duly  executed ;  that  the  testa- 
tor was  a  lunatic ;  and  so  forth.     And  as  the  same 
principle  holds,  whatever  be  the  title  of  the  claimant, 
any  particular  directions  respecting  the  defendant's 
proofs  are  altogether  unnecessary.     It  is  sufficient  to 
observe  generally,  that  the  defendant's  evidence  en- 
tirely depends  on  the  nature  of  the  proofs  advanced 
by  the  plaintiff's  lessor,  and  need  in  no  case  to  be 
extended  beyond  the  rebuttal  of  them. 


320 


CHAPTER  XL 


Of  the  Trial  and  subsequent  Proceedings. 

THE  claims  of  the  several  parties  being  prepared 
for  the  decision  of  a  jury,  by  means  of  the  fictions, 
conditions  and  proofs,  described  in  the  preceding 
chapters,  the  trial  with  its  incidents,  and  the  subse- 
quent proceedings,  will  now  occupy  our  attention. 

The  death  of  the  lessor  of  the  plaintiff,  although 
he  be  only  tenant  for  life,  will  not  abate  the  action, 
nor  can  it  be  pleaded  puis  darrien  continuance ;  be- 
cause the  right  is  supposed  to  be  in  his  lessee,  (the 
plaintiff,)  who  may  proceed  for  the  damages  occa- 
sioned by  the  supposed  ouster,  although  he  cannot 
obtain  possession  of  the  land ;  (a)  but  a  trial  of  this 
nature  is  unknown  in  practice,  for  the  damages  in 
ejectment  are  only  nominal,  and  if  the  plaintiff  be 
nonsuited  from  the  refusal  of  the  defendant  to  appear 
at  the  trial,  the  executor  of  the  lessor  will  not  be  en- 
titled to  his  costs,  for  the  consent  rule  is  merely  per- 
sonal, (b) 

(a)  Thrustout  d.  Turner  t>.  Grey,      (6)  Thrustout  u.Bedwell,  2  Wils.7. 
Stran.  1056. 


OP    THE    TRIAL.  321 

If  the  defendant  refuses  at  the  trial  to  appear,  and 
confess  lease,  entry,  and  ouster,  the  plaintiff  must  be 
nonsuited,  unless  the  action  be  at  the  suit  of  a  land- 
lord against  his  tenant,  in  which  case  it  is  optional 
with  the  lessor  of  the  plaintiff  to  be  nonsuited,  or 
proceed  with  the  trial.  If  he  adopt  the  latter  course, 
he  must  produce  the  consent  rule  and  undertaking 
of  the  defendant  (which  by  stat.  1  Geo.  IV.  c.  87.  s. 
2,  is  made  evidence  of  lease,  entry,  and  ouster,)  and 
prove  that  the  tenant,  or  his  attorney,  has  been 
served  with  due  notice  of  trial ;  and  he  will  then  be 
enabled,  after  proof  of  his  right  to  the  demised  pre- 
mises, to  go  into  evidence,  and  recover  the  amount  of 
the  mesne  profits,  accruing  from  the  day  of  the  deter- 
mination of  the  tenant's  interest,  to  the  time  of  the 
verdict,  or  to  some  preceding  day,  to  be  specially 
mentioned  therein. 

The  landlord  has  also,  by  the  same  statute,  a  like 
privilege  with  regard  to  the  recovery  of  the  mesne 
profits,  in  case  of  the  appearance  of  the  tenant  at  the 
trial;  but  the  statute  does  not  extend  to  cases  in  which 
the  relation  of  landlord  and  tenant  does  not  exist. 

By  the  stat.«l  Wm.  IV.  c.  87.  s.  38,  the  presid- 
ing judge  is  authorized  in  all  cases  of  trials  of  eject- 
ments, when  the  verdict  shall  pass  for  the  plaintiff, 
or  he  shall  be  nonsuited  for  want  of  the  defendant's 
appearance  to  confess  lease,  entry,  and  ouster,  to  cer- 
tify on  the  back  of  the  record  that  a  writ  of  posses- 
sion ought  to  issue  immediately,  and  such  writ  shall 
thereupon  issue,  (a) 

(a)  Appendix,  No.  37. 


322  OF    THE    TRIAL. 

The  judge  is  also  authorized  when  the  rule  re- 
quired by  stat.  1  Geo.  IV.  c.  87.  s.  1,  has  been  en- 
tered into  by  the  defendant,  (a)  to  stay  the  execution 
of  the  judgment,  absolutely,  until  the  fifth  day  of  the 
ensuing  term,  if  he  shall  think  the  finding  of  the  jury 
was  contrary  to  evidence,  or  that  the  damages  were 
excessive ;  and  is  compelled  so  to  stay  the  execu- 
tion, upon  the  requisition  of  the  defendant,  upon  his 
undertaking  to  find,  and  within  four  days  from  the 
trial  actually  finding  security,  by  the  recognizance  of 
himself  and  two  sufficient  sureties  in  such  reasonable 
sum  as  the  judge  shall  direct,  not  to  commit  any 
waste  or  wilful  damage,  or  sell,  or  carry  off  any 
standing  crops,  hay,  straw,  or  manure,  from  the  pre- 
mises, from  the  day  of  the  verdict  until  the  day  of 
execution.  (6) 

When  the  plaintiff'  is  nonsuited,  from  the  defend- 
ant's refusal  to  appear  and  confess,  the  cause  of  the 
nonsuit  should  be  specially  indorsed  upon  the  postea, 
in  order  to  entitle  the  plaintiff  to  have  his  costs  taxed 
and  allowed,  upon  the  consent  rule ;  (c)  and  also  to 
enable  him  (in  case  the  judge  should  refuse  under 
stat.  1  Wm.  IV.  c.  70.  s.  38,)  to  have  judgment  en- 
tered against  the  casual  ejector.  (cT) 

With  respect  to  the  time  of  entering  this  judgment, 
a  considerable  difference  prevails  between  the  practice 
of  the  Court  of  King's  Bench,  and  of  the  Common 
Pleas  :  the  judgment  being  signed,  and  the  execution 

(«)  Ante,  246.  (d)  Turner  v.  Barnaby,  Salk.  259. 

(b)  1  Geo.  IV.  c.  87.  s.  3.  Appen.  No.  83. 

(c)  Ante,  232. 


OP   THE   TRIAL.  3^3 

taken  out,  in  the  latter  Court,  immediately  after  the 
entering  of  the  nonsuit,  and,  in  the  former,  not  until 
the  day  in  bank  when  the  posted  should  be  returned ;  (a) 
and  it  is  to  be  regretted  that  two  of  the  superior  courts 
should  differ  on  a  point  so  essential  to  the  regular 
administration  of  justice. 

If  there  be  several  defendants,  and  some  of  them 
refuse  to  appear  and  confess,  it  is  the  practice  to  pro- 
ceed against  those  who  do  appear,  and  enter  a  verdict 
for  those  who  do  not,  indorsing  upon  the  posted,  that 
such  verdict  is  entered  for  them,  because  they  do  not 
appear  and  confess  ;  and  the  plaintiff's  lessor  will  then 
be  entitled  to  his  costs  against  such  defendants,  and 
to  judgment  against  the  casual  ejector  for  the  lauds 
in  their  possession.  (6) 

If  there  be  any  material  variance  between  the  issue 
and  the  record,  it  seems  that  the  defendant  should 
nevertheless  appear  at  the  trial,  and  afterwards  move 
the  Court  to  set  aside  the  verdict  for  the  variance ;  (c) 
because  if  he  do  not  appear,  he  is  out  of  court,  and 
cannot  afterwards  properly  move  to  set  aside  the  non- 
suit; yet,  upon  a  motion  of  this  nature,  the  Court 
did,  in  one  case,  grant  the  rule  upon  payment  of 


(a)Doed.Palmerstont?.Copeland,  as  to  all ,  because  all  the  defend- 

et  Throgmorton  d.  Fairfax  ».  Bent-  ants  not  admitting  the  demise,   he 

ley,  f<!T.  R.  779.     Doe  d.  Daviesv.  could  not  maintain  his  declaration. 

Roe,  1  B.  &  C.118.  The  present  practice  was  adopted 

(*)    Claxmore    v.    Searle,    Lord  in  the  reign  of  William  III.  (Ilad- 

Raym.  729.  B.  N.  P.  98.  Formerly,  dock's  case,  1  Vent.  355.)     lagg  v. 

if  some  of  the  defendants  did  not  Roberts,  2  Vent.  195. 

appear,  the  plaintiff  was  nonsuited  (r)  Ante,  273. 


324  OP   THE    TRIAL    AT    BAR. 

costs,  (a)  and  in  another  case  stayed  the  proceed- 
ings. (£) 

In  a  case  where  the  demise  was  laid  on  a  day  not 
come  at  the  time  of  the  trial,  the  defendant  was  not- 
withstanding obliged  to  confess,  as  the  plaintiff  would 
otherwise  have  been  nonsuited,  and  have  been  en- 
titled to  judgment  against  the  casual  ejector,  (c) 

If  the  property  litigated  be  of  great  value,  and 
difficulties  are  likely  to  arise  in  the  course  of  the  trial, 
the  Court  will  grant  a  trial  at  bar ;  and  the  motion  for 
this  purpose  may  be  made  by  either  party.  But  the 
mere  value  of  the  premises,  (d)  or  the  probability  of 
a  protracted  trial,  will  not  be  sufficient  to  induce  the 
Court  to  grant  the  application ;  difficulty  must  con- 
cur ;  and  therefore  the  motion  must  be  supported  by 
an  affidavit,  stating  "  the  value  per  annum  of  the 
estate ;  that  many  witnesses  are  to  be  produced  on 
each  side  ;  that  the  title  of  the  lessor  of  the  plaintiff 
will  depend,  as  the  case  may  be,  on  an  intricate  course 
of  descent,  or  the  legal  operation  of  deeds  ;  that  va- 
rious points  of  law,  and  other  questions,  will  neces- 
sarily arise  at  the  trial ;  and  that  the  cause  therefore 
should  be  tried  at  the  bar  of  the  Court,  by  a  special  jury 
of  the  county  where  the  estate  lies,  if  the  Court  shall 
so  think  fit,  and  not  before  any  one  judge  of  assize." 

It  has  been  said,  that  the  rule  is  not  to  allow  a  trial 

(a)  Jones  d.  Thomas  v.  Hengest,  Small  d.  Baker  v.  Cole,  Burr.  1159. 

Barn.  175.  (rf)  Lord  Sandwich's  case,  Salk. 

(6)  Law  v.  Wallis,  1  Barnard,  156.  648. 
(f)  Anon.     Ld.  Rayin.  798;  et 


OP   THE    TRIAL    AT    BAR.  3:25 

at  bar  in  ejectment,  unless  the  value  of  the  lands  be 
a  hundred  pounds  per  annum,]  (a)  and  in  some 
authorities  it  is  laid  down,  that  it  is  not  sufficient 
to  swear  generally,  that  the  cause  is  expected  to  be 
difficult,  but  that  the  particular  difficulty,  which  is 
expected  to  arise,  ought  to  be  pointed  out,  to  enable 
the  Court  to  judge  whether  it  be  sufficient.  (6)  And, 
in  a  late  case,  the  Court  refused  a  trial  at  bar,  on 
the  mere  allegation  of  length,  and  probable  questions 
of  difficulty  in  a  cause  respecting  a  pedigree,  (c) 

In  other  actions,  a  rule  for  a  trial  at  bar  is  never 
granted  before  issue  joined ;  but  as  the  issue  in  eject- 
ment is  very  seldom  joined  until  after  the  end  of  term, 
when  it  would  be  too  late  to  make  the  application,  the 
motion  in  this  action  may  be  granted  even  before 
appearance,  (d) 

As  the  granting  of  a  trial  at  bar  is  a  favour  con- 
ferred upon  the  applicant,  the  Courts  exercise  the 
power  of  annexing  equitable  conditions  to  their  grant. 
Thus  where,  on  an  application  made  by  the  defend- 
ant for  a  trial  at  bar,  it  appeared,  on  showing  cause 
against  the  rule,  that  the  lessor  of  the  plaintiff  was  un- 
able to  bear  the  expense,  and  that  one  of  his  witnesses 
was  above  eighty  years  of  age,  who  might  die  before  a 
trial  at  bar  could  be  had ;  the  Court  granted  the  ap- 
plication, but  said,  that  as  it  was  a  favour  asked  by 
the  defendant,  they  would  lay  him  under  terras,  that 

(a)  Goodright v. Wood,  1  Barnard,  Goodrightv.  Wood,  1  Barnard,  141, 

141.  (c)  Tidd,  768. 

(6)  Rex  v.  Burgesses  of  Caer-  (d)  Roe  d.  Cholmondley  v.  Doe, 

marthen,  Say  79.  2  Lil.  P.  R.  740.  Barn.  455. 


326  OF   THE    NEW    TRIAL. 

if  he  succeeded,  he  should  only  have  nisi  prius  costs, 
but  if  the  lessor  of  the  plaintiff  were  to  succeed  he 
should  have  bar  costs,  and  that  the  old  witness  should 
be  examined  on  interrogatories,  and  her  deposition 
read,  if  she  should  die  before  the  trial.  It  was  also, 
by  consent,  made  part  of  the  rule,  that  the  cause 
should  be  tried  by  a  Middlesex  jury,  instead  of  one 
from  Norfolk,  where  the  premises  were  situated,  (a) 
And  in  another  case,  where  the  lessor  of  the  plaintiff 
had  had  a  rule  for  a  trial  at  bar,  but  having  laid  the 
demise  by  a  wrong  person,  had  discontinued  the  ac- 
tion, and  brought  a  new  ejectment ;  the  Court  would 
not  grant  him  a  second  rule  for  a  trial  at  bar,  until  he 
had  paid  the  costs  of  the  former  ejectment,  (b) 

After  verdict  the  successful  party  is  of  course  enti- 
tled to  the  judgment  of  the  Court;  and,  unless  when 
the  statutes  1  Geo.  IV.  c.  87,  and  1  Wm.  IV.  c.  70,  pro- 
vide otherwise,  the  same  time  is  allowed  to  the  other 
party  to  move  for  a  new  trial,  or  an  arrest  of  judg- 
ment, in  ejectment,  as  in  other  actions. 

The  Courts  will  seldom  grant  a  new  trial  in  eject- 
ment, when  the  verdict  is  given  for  the  defendant,  be- 
cause all  parties  remaining  in  the  situation  they  were, 
previously  to  the  commencement  of  the  action,  the 
claimant  may  bring  a  second  ejectment  without  sub- 
jecting himself  to  additional  difficulties  ;  but  this  prin- 
ciple does  not  apply  when  the  verdict  is  given  against 
the  defendant.  The  possession  is  then  changed. 
The  defendant  in  the  first  ejectment  becomes  the 

(a)  Holmes  d.  Brown  v.  Brown,  (6)  Lord  Coningsby's  case,  Stran. 
Doug.  437.  548> 


OP   THE    JUDGMENT.  327 

plaintiffs  lessor  in  the  second,  and  is 'obliged  to  give 
evidence  of  his  own  title,  instead  of  merely  rebutting 
the  claim  set  up  by  his  opponent ;  and  as  this  is  a 
point  of  material  consequence  to  him,  "the  Courts  (to 
use  Lord  Mansfield's  words)  rather  lean  to  new  trials 
on  behalf  of  defendants  in  the  case  of  ejectments, 
especially  on  the  footing  of  surprise."  (a) 

OF  THE  JUDGMENT. 

By  the  judgment  in  ejectment,  the  plaintiffs  lessor 
obtains  possession  of  the  lands  recovered  by  the  ver- 
dict, but  does  not  acquire  any  title  thereto,  except 
such  as  he  previously  had.  If,  therefore,  he  has  a 
freehold  interest  in  them,  he  is  in  as  a  freeholder ;  if 
he  has  a  chattel  interest,  he  is  in  as  a  termor ;  and  if 
he  has  no  title  at  all,  he  is  in  as  a  trespasser,  and 
liable  to  account  for  the  profits  to  the  legal  owner, 
without  any  re-entry  on  his  part :  (6)  the  verdict  in 
the  ejectment  being  no  evidence  in  a  subsequent  ac- 
tion, even  between  the  same  parties,  (c)  Since,  then, 
the  claimant  has  a  mere  possession  given  to  him 
by  the  judgment,  it  may  be  asked  how  he  can  become 
seized  according  to  his  title  if  he  have  more  than  a 
chattel  interest  in  the  land.  This  is  effected  by  ano- 
ther fiction.  It  is  a  rule  of  law,  that  when  a  man 
having  a  title  to  an  estate  comes  into  possession  of  it 
by  lawful  means,  he  shall  be  in  possession  according 
to  his  title;  and  therefore  when  possession  is  once 


(a)  Clymer  17.  Littler,  1  Blk.  345.      Burr.  60.  90.  114. 

348.  (c)  Clerke  r.  Uowell,  1  Mod.  10. 

(b)  Taylor  d.   Atkins   v.    Horde, 


328  OF    THE    JUDGMENT. 

given  by  the  sheriff,  the  possession  and  title  are  said 
to  unite,  and  the  plaintiff's  lessor  holds  the  lands  ac- 
cording to  the  nature  of  his  interest  in  them. 

As  the  judgment  is  grounded  on  the  verdict,  it  ought 
not  to  be  entered  up  for  more  land,  or  for  different 
parcels,  than  the  defendant  was  found  guilty  of  by  the 
verdict,  though  a  variance  between  the  verdict  and 
judgment,  occasioned  by  the  misprision,  or  default,  of 
the  clerk  in  entering  the  judgment,  is  not  fatal,  but 
may  be  amended  by  the  Court,  even  after  a  writ  of 
error  brought,  (a) 

The  Courts,  indeed,  after  judgment,  make  every 
possible  intendment  in  favour  of  the  claimant ;  and  if 
the  title  declared  on  can  by  any  means  be  supposed 
to  exist,  consistently  with  the  judgment,  such  judg- 
ment will  be  supported.  Thus,  where  two  demises 
were  laid,  by  different  lessors,  of  the  same  premises 
for  the  same  term,  both  as  to  commencement  and  du- 
ration, and  the  judgment  was  that  the  plaintiff  reco- 
ver his  terms  in  the  premises ;  and  it  was  objected, 
that  both  lessors  could  not  have  a  title  to  demise  the 
whole ;  and  that  therefore  there  was  an  inconsistency 
in  the  judgment,  and  that  it  did  not  appear  which  of 
the  lessors'  rights  was  established ;  the  Court  affirmed 
the  judgment;  because,  after  a  verdict,  a  bare  possi- 
bility of  title  consistent  with  the  judgment  is  sufficient, 
and  the  two  lessors  might  have  been  joint  tenants, 
and  yet  refuse  to  join  in  a  lease.  (&)  In  like  manner 


(a)  Mason  v.  Fox,  Cro.  Jac.  631.         (6)     Morres     v.    Barry,    Stran. 
Appendix,  No.  34.  1180.  Ante,  20.9. 


OP   THE   JUDGMENT.  329 

where  the  declaration  contained  two  distinct  demises, 
by  two  different  lessors,  of  two  distinct  undivided 
thirds,  and  judgment  was  given  that  the  plaintiff  "  do 
recover  his  said  terms,"  and  on  error  it  appeared 
(from  the  facts  stated  in  a  bill  of  exceptions  to  the 
judge's  directions  on  a  point  of  law),  that  the  eject- 
ment respected  only  one  undivided  third,  the  judg- 
ment was  held  well  enough,  when  the  point  was  only 
raised  on  a  bill  of  exceptions,  and  semble  that  it  would 
have  been  well  even  on  a  special  verdict,  (a)  Upon 
the  same  principle,  when  in  an  ejectment  on  two 
several  demises  of  two  separate  parcels  of  lands,  the 
judgment  was  entered,  that  the  plaintiff  do  recover  his 
term,  and  an  objection  was  taken,  that  it  should  have 
said,  that  the  plaintiff  do  recover  his  terms,  the  Court 
said  they  would  extend  the  word  term  to  his  term  in 
A.,  and  his  term  in  B.,  and  affirmed  the  judgment.  (6) 
And  where  the  ejectment  was  upon  two  demises,  by 
different  lessors,  and  the  second  demise  was  "  of  the 
aforesaid  premises,"  and  judgment  was  entered  for 
the  plaintiff  as  to  the  first  demise,  and  the  defendant 
as  to  the  other ;  and  it  was  objected,  that  from  not 
stating  the  second  demise  to  be  of  u  other  premises? 
the  judgments  were  contradictory  to  each  other,  in- 
asmuch as  the  defendant  was  put  without  day,  as  to 
the  same  premises  for  which  the  plaintiff  recovered, 
the  Court  affirmed  the  judgment,  and  construed  the 
aforesaid  premises  which  the  second  lessor  demised 
to  mean  the  term  in  the  premises,  (c)  So  also,  where 
the  plaintiff  in  ejectment  declared  upon  two  demises 


(a)  Rowe  d.  Boyce  v.  Power,  2         (fc)  Worrall  v.  Bent,  Stran.  835. 
N.  R.  1.  35.  (c)  Fisher  v.  Hughes,  Stran.  908 


330  OF    THE    JUDGMENT. 

of  several  lands,  by  several  parties,,  but  laid  only  one 
habendum,  namely  habendum  tenementa  prcedicta,  so 
demised  by  the  aforesaid  several  parties,  for  seven 
years,  and  it  was  assigned  for  error,  that  the  declara- 
tion was  ill  for  want  of  another  habendum  ;  for  that 
the  verdict  was  general,  and  it  was  uncertain  to  which 
demise  the  single  habendum  related,  the  Court  held 
that  reddendo  singula  singulis,  it  was  well  enough,  (a) 
Where  also  the  declaration  was  for  lands,  and  com- 
mon of  pasture  generally,  without  stating  the  common 
to  be  appendant,  or  appurtenant,  it  was  intended  after 
verdict,  on  a  writ  of  error,  to  be  such  common  as 
ejectment  could  be  maintained  for.  (b)  And  where  the 
ejectment  was  for  one  messuage,  or  tenement,  and 
four  acres  of  land  to  the  same  belonging,  the  words 
"  to  the  same  belonging"  were  held  to  be  void ;  for 
land  cannot  properly  belong  to  a  house,  and  then  it 
is  a  declaration  of  a  messuage  or  tenement,  and  four 
acres  of  land,  which  though  it  be  void  for  the  tene- 
ment, is  good  for  the  land ;  for  which  the  plaintiff, 
upon  releasing  the  damages,  had  judgment,  (c) 

Upon  a  similar  principle,  where  the  plaintiff,  in  the 

(a)  Sleabourne  v.  Bengo,  1  Ld.  house  and  ten  acres  of  meadow,  be 

Raym.  561.  Moore  v.  Fursden,  2  the  same  more  or  less,"  and  had  a 

Vent.  2 14.  S.  C.  Carth.  224.  S.  C.  verdict,  the  judgment  was  arrested ; 

Comb.  190.  because  the  declaration  was  so  un- 

(6)  Newman  v.  Holdmyfast,  certain  and  repugnant,  that  even 

Stran.  54.  Ante,  19.  the  verdict  could  not  help  it,  the 

(c)  Wood  v.  Payne,  Cro.  Eliz.  land  mentioned  in  the  declaration 
186.  In  an  old  case,  where  the  being  so  different  from  that  men- 
plaintiff  declared  on  a  lease  of  a  tioned  in  the  pernomen.  (Anon 
house,  ten  acres  of  land,  twenty  Yelv.  166.)  But  quaere  if  such  a 
acres  of  meadow,  and  twenty  acres  verdict  would  not  now  be  good  for 
of  pasture,  by  the  name  of  "  a  the  ten  acres  ? 


OF    THE    JUDGMENT.  331 

first  year  of  the  reign  of  Geo.  III.  declared  upon  a 
demise  of  the  thirty -third  year  of  that  reign,  the 
Court  held  that  it  was  well  enough  after  verdict,  be- 
cause it  was  only  a  title  defectively  set  out,  and  there 
could  be  no  doubt  but  that  a  proper  title  was  proved 
at  the  trial.  (a) 

If  the  plaintiff  obtain  a  verdict  for  the  whole  pre- 
mises demanded,  the  entry  of  the  judgment  is,  that 
the  plaintiff  recover  his  term  against  the  defendant  of 
and  in  the  premises  aforesaid,  or  that  he  recover  pos- 
session of  the  term  aforesaid.  And  this  form  is  also 
used,  where  a  moiety,  or  other  part,  of  the  whole 
premises  is  recovered;  as,  for  example,  when  the 
plaintiff  declares  for  forty  acres  in  A.,  and  recovers 
only  twenty ;  and  it  is  at  the  lessor's  peril,  that  he 
take  out  execution  for  no  more  than  he  has  proved 
title  to.  (b)  But  where  the  verdict  is  for  some  parcels 
and  not  for  all,  or  part  of  all,  as  where  the  plaintiff 
declares  for  lands  in  A.,  and  lands  in  JB.,  and  the  de- 
fendant is  found  guilty  in  A.  only,  the  judgment  (c) 
is,  that  the  plaintiff  recover  his  term  in  A.;  and  as  to 
the  other  part,  whereof  the  jury  acquitted  the  de- 
fendant, that  the  plaintiff  be  in  mercy,  and  that  the 
defendant  go  thereof  without  day.  (d) 

If  the  defendant  be  acquitted  of  part,  and  judg- 

(o)  Small  d.  Baker  v.  Cole,  Burr.  W.  &  M.  c.  12,  used  to  run  quod 

1159.  defendens  capiatur ;   but,  since  that 

(6)  Doe  d.  Draper's  Company  v.  statute,  such  entry  is  no  longer  ne- 

Wilson,  2  Star.  477.  cessary.    (Linsey  v.  Clerk,   Carth. 

(c)  As  an  ejectment  is  an  action  390.    S.  C.  5  Mod.  285. 

of  trespass    vi  et  armis,  the  judg-  (d)  Judgment  Book,  7'J,  73. 
ment  before  the  statute  of  5  and  6 


332  OF    THE    JUDGMENT. 

ment  be  entered,  quod  defendens  sit  quietus  quoad 
that  part  whereof  he  is  acquitted,  this  is  error ;  for 
the  judgment  in  this  action  is  not  final,  as  in  a  writ  of 
right;  nor  does  it  protect  the  defendant  from  any 
further  suit,  but  only  acquits  him  against  the  title 
set  up  by  the  plaintiff  in  the  action,  (a) 

If  a  sole  defendant  die  after  the  commencement  of 
the  assizes  and  before  verdict,  or  after  verdict  and 
before  judgment,  it  will  not  abate  the  suit;  nor  can 
his  death  be  alleged  for  error,  provided  the  judg- 
ment be  entered  within  two  terms  after  the  ver- 
dict, (b) 

When  there  are  several  defendants,  and  one  of 
them  dies  at  any  time  before  judgment,  the  lessor 
may  proceed  against  the  survivors,  upon  suggesting 
the  death  (c)  of  such  defendant  upon  the  plea  roll  : 
the  suggestion  need  not  also  be  entered  upon  the  nisi 
prius  roll ;  for  it  is  sufficient  if  it  there  appear  to  the 
judge,  what  he  is  to  try  and  between  whom;  nor  need 
the  judgment  say,  quod  queer  ens  nil  capiat  per  breve 
against  the  dead  defendant,  (d) 

If  one  of  several  defendants  die  before  verdict,  it  is 
the  better  way  to  suggest  his  death  on  the  roll  before 
the  trial,  and  to  award  a  venire  to  try  the  issue  against 
the  surviving  defendants ;  (d)  although  where  in  such 
case  the  venire  was  awarded  against  all,  upon  suggest- 


(a)  Taylor  v.  Wilbore,  Cro.  Eliz.         (c)  8  and  9  Will.  III.  c.  11.  s.  7. 
768.  (d)  Far  v.  Denn,  Burr.  362. 

(b)  17  Car.  IT.  c.  8. 


OF   THE   JUDGMENT.  333 

ing  the  death  of  the  one  upon  the  roll  after  the  verdict, 
the  plaintiff  had  judgment  for  the  whole  against  the 
others,  (a)  But  if  the  lessor  proceed  to  trial,  and  ob- 
tain judgment  against  all  the  defendants,  without  such 
suggestion,  it  is  error,  because  there  can  be  no  ver- 
dict, or  judgment,  against  a  person  not  in  being,  (b) 

The  entry  of  the  judgment,  notwithstanding  the 
death  of  one  of  several  defendants,  ought  to  be  gene- 
ral, that  the  plaintiff  recover  his  term  in  the  premises 
against  the  survivors ;  (c)  but  execution  must  not  be 
taken  out  for  more  than  the  plaintiff  has  a  right  to 
recover. 

It  seems  that  if  the  defendants  make  a  joint  defence 
for  the  whole  land  demanded,  and  one  of  them  die, 
execution  may  be  given  of  the  whole,  because  the 
whole  interest  comes  by  survivorship  to  the  others, 
and  therefore  the  plaintiff  hath  still  persons  before  the 
Court  to  defend  the  whole  ;  but  that  where  each  of 
the  defendants  makes  a  defence  for  part  only,  the 
plaintiff,  upon  the  death  of  one  of  them,  must  not 
take  out  execution  for  the  part  in  his  possession,  be- 
cause they  are  in  the  nature  of  distinct  defendants, 
and  consequently,  as  to  that  part  which  was  defended 
by  the  person  deceased,  there  is  no  person  in  Court 
against  whom  judgment  can  be  given,  or  execution 
taken  out.  (5) 

If  an  ejectment  be  brought  against  baron  and  feme, 


(a)  Gree  v.  Rolle,  Ld  Raym.  716.         (c)  Far  v.  Derm,  1  Burr.  362. 

(b)  Gilb.  Eject.  98. 


334  OF    THE     COSTS. 

and  the  plaintiff  have  a  verdict  against  both,  but, 
before  judgment,  the  husband  dies,  the  plaintiff,  on 
suggesting  his  death,  may  have  judgment  against  the 
wife  ;  because  (having  been  found  guilty  of  the  tres- 
pass) she  must  have  obtained  the  unlawful  possession 
jointly  with  her  husband,  or  have  had  the  whole  pos- 
session in  her  own  right;  and  in  either  case,  the 
possession  is  wholly  in  her  on  the  death  of  her 
husband. (a) 

OF  THE  COSTS. 

\ 

When  the  action  is  undefended,  and  judgment  is 
entered  against  the  casual  ejector,  the  only  remedy 
which  the  lessor  of  the  plaintiff  has  for  his  costs,  is 
an  action  for  inesne  profits,  in  which,  at  the  discre- 
tion of  the  jury,  they  are  recoverable  as  consequential 
damages. 

When  the  party  interested  appears  and  enters  into 
the  consent  rule,  and  afterwards  at  the  trial  refuses 
to  confess,  he  is  liable,  upon  such  consent  rule,  to  the 
payment  of  costs,  and  an  attachment  may  be  issued 
against  him  if  he  refuse,  or  neglect  topay  the  m ;  (b) 
but  no  writ  ofjierifacias,  or  capias  ad  satisfaciendum, 
will  in  this  case  lie,  because  the  judgment  in  the  eject- 
ment is  against  the  casual  ejector,  (c) 

When  there  are  several  defendants,  some  of  whom 
appear  at  the  trial  and  confess,  but  others  do  not 

(a)  Rigley  v.  Lee,  Cro.  Jac.  356.      259. 

Lee  v.  Rowkeley,  1  Roll.  14.  (c)  Goodright  d.  Rowell  v.  Vice, 

(b)  Turner  v.  Barnaby  1,    Salk.      Barn.  182. 


OF     THE    COSTS.  335 

appear,  aud  a  verdict  is  found  against  those  who  do 
appear,  each  defendant  is  liable  for  the  whole  costs, 
and  the  plaintiff's  lessor  may  tax  them  all  against  any 
one  or  all  of  the  defendants  at  the  same  time  ;  that 
is  to  say,  upon  the  postea  against  those  who  appear, 
and  upon  the  consent  rule  against  those  who  do  not 
appear  ;  and  if  after  satisfaction  from  one  defendant 
for  the  costs,  he  take  out  execution  against  another, 
the  Court  will  interfere  to  prevent  it.  But  it  seems 
he  cannot  separate  the  costs,  and  tax  part  of  them 
against  one  defendant,  and  part  against  another,  (a) 

If  the  lessor  of  the  plaintiff  die  after  issue  joined 
and  before  trial,  or  even  after  trial  and  before  taxation 
of  costs,  the  defendant  cannot  recover  his  costs 
against  the  representative,  the  consent  rule  being,  (as 
already  mentioned,)  merely  personal ;  and  it  seems 
immaterial,  whether  the  defendant's  claim  arises  from 
a  verdict  in  his  favour,  or  from  the  plaintiff's  being 
nonsuited  upon  the  merits,  (b)  or  by  reason  of  the 
defendant's  refusal  to  confess  ;  but  where  the  plain- 
tiff's lessor  died  after  the  trial,  the  defendant  was  com- 
pelled by  the  Court  to  pay  to  his  representative  the 
costs,  which  had  been  taxed  by  consent  upon  the 
consent  rule,  (c) 

When  the  tenant  appears,  and  there  is  a  verdict 
and  judgment  against  him,  execution  may  be  taken 
out  thereon  for  the  costs,  as  in  ordinary  cases ;  and 
the  lessor  of  the  plaintiff  may  have  a  capias  ad  satis- 

(a)  Thrustout  d,  Wilson  v.  Foot,      7.     Doe  d.  Lintot  t\  Ford,  2  Smith, 
B.  N.  P.  335.     S.  C.  Barn.  149.  407. 

(6)  Thrustout  v.  Bedwell,  2  Wils.         (c)  Goodright  v.Holton,Barn,  1 19. 


336  OF    THE    COSTS. 

faciendum,  or  a  fieri  facias,  for  the  costs,  and  an 
habere  facias  possessionem  for  the  possession,  sepa- 
rately, or  in  one  writ  at  his  pleasure,  (a) 

When  the  judgment  in  ejectment  is  against  a  feme- 
sole,  who  marries  before  execution,  the  plaintifPs 
lessor  should  sue  out  an  habere  facias  possessionem  in 
the  maiden  name  of  the  defendant  for  the  land,  and 
then  proceed  by  scire  facias  against  the  husband  and 
wife  for  the  costs.  (6) 

When  the  landlord  is  made  defendant  without  the 
tenant,  the  judgment  to  recover  the  possession  is 
against  the  casual  ejector  ;  but  nevertheless,  as  there 
is  a  judgment  in  existence  against  the  landlord,  exe- 
cution may  be  taken  out  thereon  for  the  costs,  (c) 

It  may  be  collected  from  the  case  of  Gulliver  v. 
Drinkwater,  (d)  that,  independently  of  these  remedies, 
the  lessor  may,  in  all  cases,  recover  the  amount  of  his 
taxed  costs  (#)  in  an  action  for  mesne  profits  ;  but 
that  the  Court  will  not  interfere  to  assist  him,  if  the 
jury  do  not  include  such  costs  in  their  damages,  when 
the  lessor  might  have  proceeded  for  them  in  a  differ- 
ent manner. 

When  the  proceedings  are  in  the  Court  of  King's 
Bench,  and  a  verdict  is  found  for  the  defendant,  or 
the  plaintiff  is  nonsuited  for  any  other  cause  than 

(a)  Appendix,  Nos.  36,    37,  38,  (c)  Appendix,  No.  35. 

30,  40.  (d)  1  T.  R.  261. 

(/»)  Doe  d.  Taggart  v.  Butcher,  3  (e)  Doe  v.  Davis,  1  Esp.  358. 
M.  &  S.  557.— Appendix,  No.  42. 


OF    THE    COSTS. 


337 


the  defendant's  not  confessing  lease,  &c.  the 
defendant  must  tax  his  costs  on  the  posted,  as 
in  other  actions,  and  sue  out  a  capias  ad  sa- 
tisfaciendum,  or  fieri  facias,  for  the  same  against 
the  plaintiff;  and  if,  upon  showing  this  writ 
under  seal  to  the  lessor,  serving  him  with  a 
copy  of  the  consent  rule,  and  demanding  the  costs, 
the  lessor  do  not  pay  them,  the  Court  will,  on  an 
affidavit  of  the  facts,  grant  an  attachment  against 
him.  (a) 

When  the  proceedings  are  in  the  Court  of  Common 
Pleas,  it  is  the  practice  in  such  case,  for  the  pro- 
thonotary  to  tax  the  costs  upon  the  postea,  and  mark 
them  upon  the  consent  rule.  This  rule  is  then  shown 
to  the  plaintiff's  lessor,  and  at  the  same  time  the  costs 
are  demanded  of  him  by  the  defendant  personally, 
or  by  his  attorney  named  in  the  rule ;  and,  upon 
affidavit  of  such  demand,  and  of  the  lessor's  re~ 
fusal  to  pay  the  costs,  an  attachment  may  be  ob- 
tained. (V) 

When  there  are  several  defendants,  and  any 
of  them  are  acquitted  by  the  verdict,  they  will, 
by  the  provisions  of  statute  8  &  9  Wm.  and 
M.  c.  11,  be  entitled  to  costs,  unless  the  judge 


(a)  Tily  v.  Baily,  M.  6.  Geo.  II.  a  hope  that  nothing  so  absurd  as  a 

(fc)  Imp.  C.  B.  5  Ed.  654.     In  a  capias  ad  satisfaciendum  against  the 

late  case  in   the  Common    Pleas,  nominal  plaintiff,  would  ever  again 

in  which  the  parties  had  pursued  be  heard  of.   Doe  d.  Prior  u.  Salter, 

the  practice  of  the  Court  of  King's  3  Taunt.  485. 

Bench,  Mansfield,  C.  J.  expressed 


338  OF    THE    COSTS. 

shall  certify  in  open  court  that  there  was  a  good  cause 
for  making  them  defendants,  (a) 

When  the  lessor  of  the  plaintiff  is  a  peer,  no  at- 
tachment will  be  granted  against  his  person  ;  but  the 
Court  will  grant  a  rule  to  show  cause,  why  an  attach- 
ment, as  to  his  goods  and  chattels,  should  not  be 
issued,  and,  if  necessary,  will  make  that  rule  abso- 
lute. (5) 

In  a  case  where  baron-  and  feme  were  lessors  in 
ejectment,  and  the  baron  died  after  entering  into  the 
rule,  the  feme  was  held  liable  to  the  payment  of  the 
costs ;  because  they  were  to  be  paid  by  the  lessors  of 
the  plaintiff,  and  both  of  them  were  in  the  lease,  (c] 

Where  the  lessor  of  the  plaintiff  was  an  infant,  and 
his  lessee  was  nonsuited,  and  50/.  costs  were  given 
to  the  defendant,  and  the  infant's  father,  who  pro- 
secuted the  suit,  was  dead,  the  Court  made  a  rule, 
that  the  lessor  should  pay  the  costs;  yet,  says  the 
book,  it  was  doubted  in  this  case,  because  of  his  in- 
fancy; but  if  the  father  had  been  alive,  the  Court 
would  have  made  him  pay  the  costs,  or,  if  he  had  left 
assets,  his  executor.  The  question  was  adjourned,  (d) 

If  the  lessor  of  the  plaintiff  abandon  the  action 


(«)  The  provisions  of  this  statute  out  good  cause ! 
seern  scarcely  applicable  to  the  pre-  (6)  Thornby  d.  Hamilton  v.  Fleet- 
sent   mode    of   conducting    eject-  wood,  Cas.  Pr.  C.  P.  7. 
ments,  for  how  can  it  be  said,  that  (c)  Morgan  u.Stapely,  1  Keb.  827. 
he  who  was  made  a  defendant  at  (d)  Anon.     1  Freem.  373. 
his  own  request,  was  made  so  with- 


OF   THE    EXECUTION.  339 

after  the  appearance  of  the  tenant,  or  landlord,  and 
refuse  to  join  in  the  consent  rule,  he  fs  held  not 
liable  for  the  defendant's  costs,  upon  the  principle, 
that  until  he  has  put  his  signature  to  the  rule,  he  has 
not  consented  to  proceed  against  the  new  defendant,  (a) 

If  the  lessor  of  the  plaintiff  sue  informd  pauperis, 
he  will  be  dispaupered  in  case  of  vexatious  delay ; 
but  it  does  not  seem,  that  the  Court  will  also  compel 
him  to  pay  the  defendant's  costs,  (b) 

When  there  are  several  defendants,  the  lessor  of 
the  plaintiff  has  his  election  to  pay  costs  to  which  de- 
fendant he  pleases,  (c) 

If  the  lessor  proceeds  under  the  stat.  1  Geo.  IV.  c. 
87.  s.  15  and  is  nonsuited  on  the  merits,  or  has  a  ver- 
dict pass  against  him,  the  defendant  is  entitled  to 
double  costs. 

OF  THE  EXECUTION. 

When  the  lessor  of  the  plaintiff  prevails,  he  may 
enter  peaceably  upon  the  premises  recovered,  without 
any  writ  of  execution,  because  the  land  recovered  is 
certain ;  (d)  but  it  is  more  prudent  to  sue  out  the  re- 
gular writ,  as  the  assistance  of  the  sheriff  may  be  ne- 
cessary to  preserve  the  peace. 

(a)  Smith  d.  Ginger  v.  Barnardis-  (c)  Jordan  v.  Harper,  Stran.  516. 
ton,  Blk.  904.  (d)  Taylor   d.   Atkins  v.  Horde, 

(b)  Doe  d.  Leppingwell  v.  Trus-  Burr.  60.  88.    Anon.  2  Sid.  155.  6. 
sell,  6  East.  505. 

z2 


340  OF    THE    EXECUTION. 

The  writ  of  execution  in  an  ejectment  is  called  the 
writ  of  habere  facias  possessionem,  and  answers  to 
the  habere  facias  seisinam  in  real  actions :  for  as  in 
the  one  case,  the  freehold  being  recovered,  the  sheriff 
is  ordered  to  give  the  demandant  seisin  of  the  lands 
in  question,  so  also  in  the  other  case,  the  possession 
being  recovered,  the  sheriff  is  commanded  to  give 
execution  of  the  possession,  (a) 

When  the  landlord  is  admitted  to  defend  the  action, 
and  the  judgment  is  entered  against  the  casual  ejector, 
with  a  stay  of  execution  until  further  order,  if  the 
plaintiff  be  nonsuited  at  the  trial,  because  of  the  re- 
fusal of  the  defendant  to  appear  and  confess,  the  les- 
sor cannot  sue  out  a  writ  of  possession,  without  first 
moving  the  Court  for  leave  to  do  so ;  and  the  rule  is, 
in  the  first  instance,  only  a  rule  to  show  cause.  And 
if  he  sue  out  a  writ  of  possession  without  such  mo- 
tion, the  execution  will  be  set  aside  for  irregularity. 
But  if  the  plaintiff  obtains  a  verdict  and  judgment 
against  the  landlord,  he  may  take  out  execution  on 
the  judgment  against  the  casual  ejector,  notwithstand- 
ing the  terms  of  the  consent  rule,  without  any  further 
order  of  the  Court,  (b) 

When  the  writ  of  possession  issues  upon  a  judge's 
certificate,  under  the  authority  of  stat.  1  Wm.  IV.  c. 
70.  s.  37,  it  must,  instead  of  the  usual  recital  of  a  re- 
covery by  judgment,  recite  as  directed  by  the  statute, 

(a)  Appendix,  Nos.  36  to  40.  B.  &  C.  897. 

(b)  Doe  d.  Lucy  v.  Bennett,  4. 


OF    THE    EXECUTION.  341 

that  the  cause  came  on  for  trial  at  Nisi  Prius,  at 
such  a  time  and  place,  and  before  such  a  judge, 
(naming  time,  place  and  judge)  and  that  thereupon 
the  judge  certified  his  opinion  that  a  writ  of  pos- 
session ought  to  issue  immediately,  (a) 

If  the  lessor  of  the  plaintiff  be  divested  of  his  right  of 
possession  between  the  time  when  his  demise  is  laid, 
and  the  time  of  issuing  execution,  it  seems  that  the 
Court  will  prevent  him  from  issuing  a  writ  of  habere 
facias  possessionem,  or  set  one  aside,  if  issued.  (6) 

In  other  cases  the  execution  follows,  of  course, 
upon  the  judgment. 

The  writ  of  possession  is  drawn  up  in  general 
terms,  commanding  the  sheriff  to  give  to  the  plaintiff 
"  the  possession  of  his  term,  of  and  in  the  premises 
recovered  in  the  ejectment ;"  but  without  any  parti- 
cular specification  of  the  lands  whereof  he  is  to  make 
execution ;  and  as  the  description  of  the  premises,  in 
the  demise  in  the  declaration,  is  also  too  general  to 
serve  as  a  direction  to  the  sheriff,  it  is  the  practice, 
for  the  lessor  of  the  plaintiff,  at  his  own  peril,  to  point 
out  to  the  sheriff  the  premises  whereof  he  is  to  give 
him  possession ;  and  if  the  lessor  take  more  than  he 
has  recovered  in  the  action,  the  Courts  will  interfere 
in  a  summary  manner,  and  compel  him  to  make  re- 
stitution, (c) 


(a)  Appendix,  No.  37.  (c)  Roe    d.   Saul  v.    Dawson,  3 

(V)  Doe  d.  Morgan   v.  Bluck,  3      Wils.  49.     Doe  d.  Draper's  Comp. 

Campb.  417.  v.  Wilson,  2  Stark.  477.     Ante,  23. 


342  OF    TttE    EXECUTION. 

They  will  also,  if  circumstances  require,  interfere 
before  the  execution  of  the  writ,  and  restrain  the 
lessor  from  taking  possession  of  more  than  he  is  en- 
titled to.  As,  where  the  lessor  had  declared  for  lands 
held  under  two  separate  titles,  and  by  a  mistake  of 
the  judge  upon  the  law  of  the  case,  the  verdict  was 
given  for  the  plaintiff  upon  both  titles,  when  it  ought 
to  have  been  entered  for  the  defendant  as  to  the  lands 
comprised  in  one  of  them ;  the  Court  after  argument 
granted  a  rule  to  confine  the  execution  to  those  lands 
only,  to  which  the  lessor  had  a  valid  title,  (a) 

The  sheriff  it  seems,  previously  to  the  execution  of 
the  writ,  may  demand  an  indemnity  from  the  plain- 
tiff; (6)  and  when  he  has  to  deliver  possession  of  any 
particular  number  of  acres,  he  must  estimate  them 
according  to  the  custom  of  the  country  in  which  the 
lands  are  situated,  (c) 

The  possession  to  be  given  by  the  sheriff,  is  a  full 
and  actual  possession,  and  he  is  armed  with  all  power 
necessary  to  this  end.  Thus,  if  the  recovery  be  of 
a  house,  and  he  be  denied  entrance,  he  may  justify 
breaking  open  the  door,  for  the  writ  cannot  otherwise 
be  executed,  (d) 

If  the  lessor  recover  several  messuages  in  the  pos- 
session of  different  persons,  the  sheriff  must  go  to 
each  of  the  several  houses,  and  severally  deliver  pos- 

(a)  Doe  d.  Forster  v.  Wandlass,  (6)  Gilb.  Eject.  110. 

7  T.  R.   118,    in   notis.     Et  vide  (c)  Roll.  Ab.  886.  H.  4. 

Brooke  d.  Mence  v.  Baldwin,  Barn.  (rf)  Semayne's  case,  5  Co.  91,  (6> 
468. 


OP   THE    EXECUTION.  343 

session  thereof,  (which  is  done  by  turning  out  the 
tenants ;)  for  the  delivery  of  the  possession  of  one 
messuage,  in  the  name  of  all,  is  not  a  good  execution 
of  the  writ ;  since  the  possession  of  one  tenant  is  not 
the  possession  of  the  other,  (a)  But  when  the  seve- 
ral messuages  are  in  the  possession  of  one  tenant  only, 
it  is  sufficient  if  he  give  possession  of  one  messuage 
in  the  name  of  all.  (b) 

When  the  recovery  is  of  land,  the  same  distinction 
seems  to  prevail ;  that  is  to  say,  if  there  be  only  one 
tenant,  a  delivery  of  any  part,  in  the  name  of  the 
whole,  will  be  sufficient;  but  if  there  be  more  than 
one,  a  separate  delivery  of  the  lands  in  the  possession 
of  each  tenant  respectively  must  be  made,  (a) 

If  the  officers  be  disturbed  in  the  execution  of  the 
writ,  the  Court  will,  on  affidavit  of  the  circumstances, 
grant  an  attachment  against  the  party,  whether  he  be 
the  defendant,  or  a  stranger :  (c)  and  the  writ  is  not 
understood  to  be  completely  executed,  until  the  sheriff' 
and  his  officers  are  gone,  and  the  plaintiff"  is  left  in 
quiet  possession. 

In  an  old  case  where  the  sheriff  returned,  that  in 
the  execution  of  the  writ,  he  removed  all  the  persons, 
whom  upon  diligent  search  he  could  find  on  the  pre- 
mises, and  gave  peaceable  possession  to  the  plaintiff, 
and  that,  immediately  after  he  was  gone,  three  men, 
who  were  secretly  lodged  in  the  house,  expelled  the 

(a)  1  Roll.  Ab.  886.     H.  2.  (c)  Kingsdaleu.  Man,  6  Mod.  27. 

(b)  Floyd  v.  Bethill,  1  Roll.  Rep.      S.  C.  Salk.  321. 
420. 


344  OF    THE    EXECUTION. 

plaintiff,  upon  notice  of  which  he  returned  to  the 
house  to  put  the  plaintiff  in  full  possession,  but  met 
with  such  resistance  that  he  could  not  do  it,  but  at  the 
peril  of  his  life ;  the  Court  held  that  the  same  was  no 
execution,  and  awarded  a  new  writ,  (a) 

In  the  old  authorities  we  find  it  laid  down,  that  if 
the  lessor,  after  having  had  possession  given  to  him 
by  the  sheriff,  and  before  the  writ  of  possession  has 
been  returned  and  filed,  be  again  ousted  by  the  de- 
fendant, he  shall  have  a  new  writ  of  possession,  or  an 
attachment ;  but  that  if  he  be  ousted  by  a  stranger, 
he  shall  be  driven  to  another  ejectment;  and  the  rea- 
son assigned  for  this  distinction  is,  that  in  the  one 
case  the  defendant  shall  never,  by  his  own  act,  keep 
the  possession  which  the  plaintiff  has  recovered  from 
him  by  due  course  of  law,  and  in  the  other  that,  as 
the  title  was  never  tried  between  the  plaintiff  and  the 
stranger,  he  may  claim  the  land  under  a  title  para- 
mount to  that  of  the  plaintiff,  and  therefore  the  re- 
covery and  execution  in  the  former  action,  ought  not 
to  hinder  the  stranger  from  keeping  that  possession, 
to  which  he  may  have  a  right.     It  is  also  said,  that 
the  return  of  the  writ  of  the  execution  is  so  much  in 
the  power  of  the  plaintiff,  that  the  Court  will  not,  at 
the  instance  of  the  defendant,  direct  it  to  be  returned ; 
for  the  return  is  left  to  the  discretion  of  the  plaintiff, 
that  he  may  do  what  is  most  for  his  own  advantage, 
in  order  to  have  the  benefit  of  his  judgment;  the  best 
way  to  effect  which  is,  to  permit  him  to  renew  the 


(a)  Upton  v.  Wells,  1  Leon.  145. 


OF    THE    EXECUTION.  345 

execution  at  his   pleasure,    until  full   execution   be 
obtained,  (a) 

All  these  cases,  however,  seem  to  be  overruled  by 
a  late  decision  of  the  Court  of  Common  Pleas.  The 
lessor  of  the  plaintiff  had  been  put  into  possession  by 
virtue  of  a  writ  of  habere  facias  possessionem,  on  the 
22d  day  of  February,  1806,  which  writ  had  never 
been  returned  by  the  sheriff;  and  on  the  10th  day  of 
October,  1807,  whilst  he  continued  in  possession,  the 
person,  against  whom  he  had  recovered  the  premises, 
entered  into  the  house  by  force,  and  resisted  with  vio- 
lence all  atteaipts  to  regain  the  possession.  Upon 
these  grounds,  a  new  writ  of  habere  facias  was 
moved  for,  aad  the  case  of  Radcliff  v.  Tate,  (b)  was 
cited :  but  "  the  Court  denied  the  authority  of  that 
case,  and  held  that  possession  having  been  given  un- 
der the  first  writ,  the  sheriff  ought  to  have  returned, 
'  that  he  had  given  possession/  and  that  the  plaintiff 
could  not  afterwards  have  had  another  writ :  an  alias 
cannot  issue  after  a  writ  is  executed.  If  it  could,  the 
plaintiff,  by  omitting  to  call  on  the  sheriff  to  make  his 
return  to  the  writ,  might  retain  the  right  of  suing  out 
a  new  habere  facias  possessionem,  as  a  remedy  for 
any  trespass  which  the  same  tenant  might  commit 
within  twenty  years  next  after  the  date  of  the  judg- 
ment ;"  (c)  and  the  rule  was  refused. 

(a)  Rex.  v.Harris,  Ld.Raym.  482.  vies  d.  Povey  v.   Doe,   Blk.   392. 

Molineux  v.  Fulgam,  Palm.  289.  Anon.  2  Brown,  253.     Kingsdale  v. 

Ratcliffu.  Tate,  1  Keb.  776.     Love-  Mann,  6  Mod.  27.  S.  C.  Salk.  321. 

less  v.  RatclifF,  1  Keb.  785.     Deve-  Goodright  v.  Hart,  Stran.  830. 

reux  v.  Underbill,  2  Keb.  245.  For-  (6)  1  Keb.  779. 

tune  v.  Johnson,  Styl.  318.    Pierson  (c)  Doe  d.  Pate  v.  Roe.  1  Taunt. 

v.  Tavenor,  1  Roll.  Rep.  353.     Da-  55. 


346  OF    THE    EXECUTION. 

If  the  lessor  neglect  to  sue  out  his  writ  of  possession 
for  a  year  and  a  day  after  judgment,  he  must  revive 
the  judgment  by  scire  facias,  as  in  other  cases  ;  and 
when  the  judgment  is  against  the  casual  ejector,  the 
ter-tenant  must  be  joined  in  the  writ,  (a) 

When  a  sole  defendant  in  ejectment  dies  after 
judgment,  and  before  execution,  it  has  been  doubted 
whether  a  scire  facias  is  necessary,  because  the  ex- 
ecution is  of  the  land  only,  and  jio  new  person  is 
charged ;  (#)  but  the  surer  method  is,  notwithstanding, 
to  sue  out  a  scire  facias.  And  as  a  scire  facias  for 
the  land  must  issue  against  the  ter-tenant,  whoever 
he  may  be,  it  will  be  also  necessary  to  sue  out  another 
scire  facias  for  the  costs  against  the  personal  repre- 
sentative, unless  he  be  himself  the  ter-tenant.  (c) 

When  the  judgment  in  ejectment  is  against  a  feme 
sole,  who  marries  before  execution,  the  plaintiff's 
lessor  should  sue  out  an  habere  facias  possessionem 
in  the  maiden  name  of  the  defendant  for  the  land,  and 
then  proceed  by  scire  facias  against  the  husband  and 
wife,  for  the  costs,  (c] 

If  the  lessor  of  the  plaintiff  die  after  the  teste  of  the 
writ,  but  before  it  is  actually  sued  out,  it  is  not  ne- 
cessary to  revive  the  judgment  by  scire  facias  ;  and 
as  he  is  not  a  party  on  the  record,  it  seems  no  scire 
facias  would  be  necessary,  if  he  died  before  the  teste 

(a}  Withers  u.  Harris,  Lord  Raym.  Proctor  v.  Johnson,  2  Salk.  600. 

806.— Appendix,  No.  42.  S.  C.  Ld.  Raym.  669. 

(6)  Per  Holt,  C.  J.  Withers  v.  (c)  Doe  d.  Taggart  v.  Butcher, 

Harris,  Ld.  Raym.  806.  Sed  vide  3  M.  &  S.  557. 


OF    THE    WRIT    OF    ERROR.  347 

of  the  habere  facias  possessionem,  although  the  case 
of  Doe  d.  Beyer  v.  Roe,  (a)  has  certainly  left  this 
point  somewhat  doubtful. 

When  the  sheriff  delivers  possession  of  the  land 
under  the  writ  of  habere  facias  possessionem,  he 
thereby  also  delivers  possession  of  the  crops  upon  it ; 
and  such  crops  will  pass  to  the  lessor,  although 
severed  at  the  time  of  the  execution  of  the  writ, 
provided  such  severance  has  been  made  subse- 
quently to  the  determination  of  the  tenant's  interest, 
and  of  the  day  of  the  demise  in  the  declaration.  (6) 
And  the  growing  crops  will  also  pass  to  the  lessor  by 
the  execution  of  the  writ  of  possession,  although  pre- 
viously seized  under  a  fieri  facias  against  the  tenant, 
if  the  day  of  the  demise  be  prior  to  the  issuing  of 
such  fieri  facias ,  inasmuch  as  they  cannot  be  said  to 
belong  to  the  tenant,  who  is  a  trespasser  from  that 
day.  (c) 

OF  THE  WRIT  OF  ERROR. 

A  writ  of  error  in  ejectment  cannot  be  brought  in 
the  name  of  the  casual  ejector,  (d)  and  consequently 
it  will  not  lie  until  after  verdict ;  for,  before  appear- 
ance, the  casual  ejector  is  the  only  defendant  in  the 
suit,  and,  after  appearance,  the  new  defendant  is 
bound  by  the  terms  of  the  consent  rule  to  plead  the 

(a)  Burr.  1970.  (<f)  Roe  d.  Humphreys  v.  Doe, 

(6)  Doe  d.  Upton  v.  Witherwick,  Barn.  181.  This  principle  is  of 

3  Bing.-ll.  course  limited  to  the  modern  prac- 

(c)  Hodgson  v.  Gascoigne,  5  B.  tice. — Ante,  chap.  VI. 

&  A.  88. 


348  OF    THE    WRIT    OF    ERROR. 

general  issue,  (a)  If  also  the  defendant  refuse  at  the 
trial  to  confess,  &c.  he  will  be  precluded  from  bring- 
ing error,  because  the  plaintiff  will  then  be  nonsuited 
as  to  him,  and  the  judgment  will  be  entered  against 
the  casual  ejector,  (a) 

When  indeed  the  landlord  defends  alone,  and  the 
verdict  is  found  against  him,  error  may  be  brought, 
notwithstanding  that  the  judgment,  upon  which  the 
execution  issues,  is  entered  against  the  casual  ejec- 
tor: (a)  for  a  judgment  is  also  in  existence  against  the 
landlord,  and  upon  that  judgment,  the  writ  of  error 
may  be  taken  out  in  the  landlord's  name.  To  enable 
him,  however,  to  proceed  with  the  writ  of  error,  he 
must,  it  seems,  obtain  a  rule  to  stay  the  plaintiff 
from  taking  out  execution  against  the  casual  ejec- 
tor ;  (6)  and  if  he  omit  to  do  this,  and  suffer  a 
regular  execution  to  take  place,  the  Court  will  not, 
on  a  subsequent  motion,  order  the  execution  to  be 
set  aside,  (c) 

By  statutes  16  and  17  Car.  II.  c.  8.  s.  3  and  4,  it  is 
enacted,  that  no  execution  shall  be  staid  by  writ  of 
error,  upon  any  judgment  after  verdict  in  ejectment, 
unless  the  plaintiff  in  error  shall  become  bound  in  a 
reasonable  sum  to  pay  the  plaintiff  in  ejectment,  all 
such  costs,  damages,  and  sums  of  money,  as  shall  be 
awarded  to  such  plaintiff,  upon  judgment  being  af- 
firmed, or  on  a  nonsuit,  or  discontinuance  had ;  and, 
in  case  of  affirmance,  discontinuance,  or  nonsuit,  the 


(a)  Ante,  263.  (c)  George  d.  Bradley  v.  Wisdom, 

(6)  Ante,  340.  Burr.  756. 


OP   THE   WRIT    OF    ERROR.  349 

Court  may  issue  a  writ  to  inquire,  as  well  of  the 
mesne  profits,  as  of  the  damages  by  any  waste  com- 
mitted after  the  first  judgment ;  and  are  upon  the  re- 
turn thereof  to  give  judgment,  and  award  execution 
for  the  same,  and  also  for  costs  of  suit. 

The  words  of  this  statute  seem  to  render  it  neces- 
sary for  the  plaintiff  in  error  to  be  personally  bound ; 
but  by  a  reasonable  construction,  it  is  held  sufficient, 
if  he  procure  proper  sureties  to  enter  into  the  re- 
cognizance of  bail,  for  otherwise  lessors  residing  in 
distant  counties  would  sustain  great  inconvenience, 
and  an  infant  lessor,  or  a  lessor  becoming  a  feme 
covert  after  action  brought,  would  be  entirely  ex- 
cluded from  the  benefit  of  the  act.  («)  But,  although 
the  sureties  may  be  examined  as  to  their  sufficiency, 
the  plaintiff  in  error  cannot,  and  therefore  where 
the  lessor  of  the  plaintiff  swore,  that  the  defendant 
was  insolvent,  and  also  that  he  (the  lessor)  had  a 
mortgage  upon  the  land  for  more  than  it  was 
worth,  the  Court  still  held,  that  the  defendant's  re- 
cognizance was  sufficient  to  entitle  him  to  his  writ  of 
error. 

The  plaintiff  in  error  is  not  bound  to  give  the 
defendant  in  error  notice  of  his  entering  into  the 
recognizance  pursuant  to  stat.  16  and  17  Car.  II.  c. 
8.  s.  3 ;  (b)  and  the  reasonable  sum  in  which  the 
recognizance  is  taken  under  this  statute,  is  generally 


(a)  Barnes  v.  Bulmer,  Carth.  121.      Ueardon,  8  East.  298. 
Lushington  d.  Godfrey  v.  Dose,  7         (6)  Doe  d.  Webb  ».  Goundry,  7 
Mod.  304.     Keene  d.  Lord  Byron  v.     Taunt.  427. 


350  OF    THE    WRIT    OF    ERROR. 

double  the  improved  rent  of  the  premises  in  dispute, 
and  the  single  costs  of  the  ejectment,  (a) 

The  writ  of  error  does  not  operate  as  a  stay  of 
execution  until  bail  is  put  in,  which  cannot  be  done 
until  the  plaintiff's  lessor  has  taxed  his  costs,  for 
until  costs  are  taxed,  the  amount  of  the  penalty  of 
the  recognizance  of  the  bail  in  error  cannot  be  fixed ; 
and  if  the  lessor  choose  to  waive  his  taxation  of  costs, 
and  proceed  for  his  possession  only,  the  Court  will 
not  interfere  to  prevent  him,  notwithstanding  the 
allowance  of  the  writ  of  error,  (b) 

Where  the  tenants  in  possession,  having  under- 
taken to  appear  on  the  usual  terms,  and  also  to  take 
short  notice  of  trial,  made  no  defence  at  the  trial, 
but  sued  out  a  writ  of  error,  when  the  judgment  was 
signed ;  the  Court,  on  motion,  allowed  the  lessor  to 
take  his  judgment  and  execution  against  the  casual 
ejector,  notwithstanding  the  pendency  of  the  writ  of 
error,  (c) 

In  the  case  of  Wharod  v.  Smart,  (d)  the  defendant 
brought  a  writ  of  error  in  parliament,  and  the  Court 
compelled  him  to  enter  into  a  rule  "  not  to  commit 
waste,  or  destruction,  during  the  pendency  of  the 
writ  of  error." 

When  the  plaintiff's  lessor  proceeds  against  the 
bail  by  action  on  the  recognizances,  they  are  not 

(a)  Thomas    v.  Goodtitle,  Burr.     Taunt.  289. 

2501.     Kecne    d.  Lord    Byron  v.          (c)  Doe  d.  Morgan  v.  Roe,  3  Bing. 
Deardon,  8  East.  298.  1C9. 

(b)  Doe  d.  Messiter  v.  Dinely,  4         (d)  Burr.  1823. 


OP    BRINGING    A    SECOND    EJECTMENT.  351 

chargeable  with  the  mesne  profits  under  stat.  16  and 
17  Car.  II.  c.  1.  s.  4,  unless  their  amount  has  been 
first  ascertained  by  writ  of  inquiry  pursuant  to  the 
provisions  therein  contained,  (a). 

After  a  recovery  in  ejectment,  the  lessor  of  the 
plaintiff  may  peaceably  enter,  pending  a  writ  of  error, 
if  he  find  the  premises  vacant ;  but  he  cannot  enter 
by  force,  nor  take  out  a  writ  of  execution.  (6) 

OF    BRINGING    A    SECOND    EjECTMENT. 

We  have  now  traced  the  proceedings  in  this  action, 
from  the  commencement  to  the  conclusion  ;  and  it 
only  remains  to  add  a  few  remarks  respecting  the 
bringing  of  a  new,  or  second  ejectment. 

It  has  already  been  observed,  that  a  judgment  in 
ejectment  confers  no  title  upon  the  party  in  whose 
favour  it  is  given;  and  that  it  is  not  evidence  in  a 
subsequent  action,  even  between  the  same  parties,  (c) 
From  these  circumstances  it  is  manifest,  that  the  judg- 
ment can  never  be  final ;  and  that  it  is  always  in  the 
power  of  the  party  failing,  whether  claimant,  or  de- 
fendant, to  bring  a  new  action.  The  structure  of  the 
record  also  renders  it  impossible  to  plead  a  former  re- 
covery in  bar  of  a  second  ejectment :  for  the  plaintiff 
in  the  suit  is  only  a  fictitious  person,  and  as  the  de- 
mise, term,  &c.  may  be  laid  many  different  ways,  it 
never  can  be  made  appear  that  the  second  ejectment 
is  brought  upon  the  same  title  as  the  first. 

(a)  Doe  v.  Reynolds,  1  M.  &  S.      398.    Recog.  in  Withers  v.  Harris, 
247.  Ld.  Raym.  806. 8. 

(1)    Badger  v.  Floyd,   12  Mod.         (c)  Ante,  215. 


35*2  OF    BRINGING    A    SECOND    EJECTMENT. 

It  is  said  by  Mr.  Serjeant  Sellon,  in  his  Practice  of 
the  Courts,  (a)  (C  that  it  has  sometimes  been  attempted 
in  Chancery,  after  three  or  four  ejectments  by  a  bill 
of  peace  to  establish  the  prevailing  party's  title;  yet 
it  hath  always  been  denied,  for  every  termor  may 
have  an  ejectment,  and  every  ejectment  supposes  a 
new  demise,  and  the  costs  in  ejectment  are  a  reconr 
pence  for  the  trouble  and  expense  to  which  the  pos- 
sessor is  put.  But  that  where  the  suit  begins  in 
Chancery  for  relief  touching  pretended  incumbrances 
on  the  title  of  lands,  and  the  Court  has  ordered  the 
defendant  to  pursue  an  ejectment  at  law,  there,  after 
one  or  two  ejectments  tried,  and  the  right  settled  to 
the  satisfaction  of  the  Court,  the  Court  hath  ordered  a 
perpetual  injunction  against  the  defendant,  because 
there  the  suit  is  first  attached  in  that  Court,  and  never 
began  at  law ;  and  such  precedent  incumbrances  ap- 
pearing to  be  fraudulent,  and  inequitable  against  the 
possession,  it  is  within  the  compass  of  the  Court  to 
relieve  against  it."  It  should  seem  however  from  the 
cases  of  Barefoot  v.  Fry,  (#)  and  Leighton  v.  Leigh- 
ton,  (c)  that  courts  of  equity  will  sometimes  interfere, 
and  grant  perpetual  injunctions,  when  the  ejectments 
have  been  commenced  in  the  usual  way  at  the  com- 
mon law.  (cT)  And  in  one  case,  where  upon  a  most 
vexatious  prosecution  of  ejectments,  the  Court  of 
Chancery  refused  to  grant  a  perpetual  injunction, 
upon  an  appeal  to  the  House  of  Lords,  the  injunction 
was  allowed,  (e) 

(«)  2  Sell.  Prac.  144.  Price,  417. 

(6)  Bumb.  158.  (e)  Earl  of  Bath  v.  Sherwin,  Bro. 

(c)  1  P.  Wins.  671.  Cas.  Parl.  270. 

(d)  Deardon  v.  Lord  Byron,  8 


353 


CHAPTER  XII. 

Of  staying  the  Proceedings  in  the  Action    of 
Ejectment. 

THE  discretionary  power  exercised  by  the  Courts 
in  the  regulation  of  ejectments,  is  frequently  called 
forth  by  applications  from  the  defendant,  to  stay  the 
proceedings  in  the  action ;  and  a  separate  consider- 
ation of  the  cases  in  which  these  applications  have 
been  granted,  seems  preferable  to  intermixing  them 
with  the  detail  of  the  regular  practice. 

When  the  ejectment  is  brought  on  the  forfeiture 
of  a  lease,  the  proceedings  will  be  stayed  upon  the  ap- 
plication of  the  tenant,  until  the  lessor  of  the  plaintiff 
has  delivered  particulars  of  the  breaches  of  covenant, 
on  which  he  intends  to  rely ;  and  a  summons  for  this 
purpose  will  be  granted  before  the  tenant  has  ap- 
peared to  the  action,  or  entered  into  the  consent 
rule,  (a) 

When  the  lessor  of  the  plaintiff  is  an  infant,  the 
Court  will  stay  the  proceedings  until  security  be 

(a)  Doe  d.  Birch  v.  Phillips,  6  T.  R.  597. 

A  A 


354  OF    STAYING    PROCEEDINGS. 

given  for  the  costs,  unless  a  responsible  person  has 
been  made  the  plaintiff  in  the  suit,  or  the  father,  or 
guardian  undertake  to  pay  them ;  but  an  inquiry  as 
to  these  facts  should  be  made  previously  to  the  appli- 
cation, (a)  The  proceedings  will  also  be  stayed  until 
security  be  given  for  the  costs,  when  the  lessor  re- 
sides abroad ;  (b)  and,  in  a  case  where  an  ejectment 
was  brought  upon  the  demise  of  a  person  resident  in 
Ireland,  the  Court  of  King's  Bench  stayed  the  proceed- 
ings until  security  should  be  given  for  the  costs, 
although  it  was  an  ejectment  brought  under  the  di- 
rection of  the  Court  of  Chancery,  where  the  bill  was 
retained  until  after  the  trial  of  the  ejectment,  and 
security  had  already  been  given  there  to  the  amount 
of  ^40.  (c)  In  like  manner,  if  the  plaintiffs  lessor 
should  die  pending  the  action,  it  seems  that  the  Court, 
although  they  cannot  stay  the  proceedings  in  toto,  will 
not  suffer  the  suit  to  proceed,  unless  security  be  given 
for  the  costs,  (d)  And  when  the  lessor  is  unknown  to 
the  defendant,  the  latter  may  demand  an  account  of 
his  residence,  or  place  of  abode,  from  the  lessor's 
attorney,  and  if  he  refuse  to  give  it,  or  give  a  ficti- 
tious account  of  a  person  who  cannot  be  found,  pro- 
ceedings will  be  stayed  until  security  for  the  costs  be 
given,  (e)  But  these  are  the  utmost  limits  to  which 
the  Courts  will  go  in  granting  rules  of  this  nature ; 
and  an  application  has  been  refused,  founded  on  the 


(a)    Noke  v.  Windham,    Stran.  (c)    Denn  d.  Lucas  v.   Fulford, 

694.      Throgmorton    d.    Miller  v.  Burr.  1177. 

Smith,  Stran.  932.    Anon.  1  Wils.  (d)  Thrustout  d.  Turner  v.  Grey, 

130.    Anon.  1  Cowp.  128.  Appen-  Stran.  1056. 

dix,  No.  43.  (e)  Tidd's  Prac.  476,  7. 

(6)B.N.P.lll.Appendix;No.44. 


OF    STAYING    PROCEEDINGS.  355 

poverty  of  the  lessor,  (a)  and  also  one  in  which 
it  appeared,  that  an  ejectment  had  previously  been 
brought  in  another  court  and  abandoned,  and  that 
the  lessor  had  been  obliged  to  give  security  in  the 
first  ejectment,  because  his  residence  was  then  un- 
known, (b)  The  practice  of  granting  these  rules 
originated  in  the  Court  of  King's  Bench,  and  were 
indeed  at  first  entirely  confined  to  cases  of  infant 

lessors,  (c) 

«• 

The  proper  time  to  take  out  a  summons,  or  move 
the  Court  for  this  rule,  is  after  plea  pleaded,  (d) 

The  next  case,  in  which  the  Courts  interfere  to 
stay  the  proceedings,  is  when  the  costs  of  a  prior 
ejectment  upon  the  same  title,  or  between  the  same 
parties,  are  left  unpaid,  (e) 

For  some  time  after  the  introduction  of  this  prac- 
tice, the  Court  would  not  interfere  unless  the  two 
ejectments  were  brought  in  the  same  court;  (f)  but 
this  limitation  no  longer  prevails,  and  it  is  now  imma- 
terial in  what  court  the  first  ejectment  is  brought,  (g) 
Formerly  also  there  was  a  diversity  of  opinion,  whether 
the  proceedings  could  be  stayed,  where  the  two  eject- 
ments were  brought  (without  fraud,  or  collusion)  upon 

(a)  Goodrightd.  Jones  v.  Thrust-  (/)  Austine  v.  Hood.  1  Sid.  279. 

out,Cas.Pr.  C.  P.  15.  Tredway  v.  Harbert,  Comb.  106. 

(ft)  Doe  d.  Selby  v.  Alston,  1 T.  R.  (g)  Doe  d.  Hamilton  v.  Atherly, 

491.  7  Mod.  420.  Anon.  1  Salk.  255. 

(c)  Thrustout  d.  Dunham  v.  Per-  Holdfast  d.  Hattersley  v.  Jackson, 
cival,  Barn.  183.  Barn.  133.  Doed.  Chadwick  v.  Law, 

(d)  2  Sell.  Prac.  139.  Blk.  1158.     Doe  d.  Walker  v.  Ste- 

(e)  Append.  No.  45.  phenson,  3  B.  &  P.  22. 

AA2 


356  OF    STAYING    PROCEEDINGS. 

different  demises  although  upon  the  same  title ;  (a) 
but  it  is  now  of  no  consequence  whether  the  two 
ejectments  are  brought  upon  the  demise  of  the  same 
or  different  persons,  against  all  or  some  of  the  same 
parties,  or  for  the  same  or  different  premises,  pro- 
vided they  are  brought  upon  the  same  title,  and  for 
the  recovery  of  part  of  the  same  estate.  Thus,  pro- 
ceedings have  been  stayed  where  one  of  the  lessors  of 
the  plaintiff  in  the  first  action  died  before  the  com- 
mencement of  the  second  ;  where  in  the  second  eject- 
ment two  trustees  were  added  to  the  lessors ;  where 
part  of  the  lands  were  occupied  by  new  tenants ; 
where  the  second  action  was  between  the  heir  of  the 
plaintiff's  lessor,  and  the  heir  of  the  defendant  in  the 
first  action.  (&)  And  in  a  case,  where  the  second 
ejectment  was  brought  by  the  lessee  of  an  insolvent 
debtor,  who  had  been  the  lessor  of  the  plaintiff  in  the 
first  action,  and  it  appeared  that  the  assignment  was 
fraudulent  to  evade  the  payment  of  the  costs,  the 
Court,  (without  entering  into  the  point,  whether,  in  a 
fair  case,  the  assignee  of  an  insolvent  debtor  shall  be 
called  upon  for  former  costs,  before  he  be  suffered  to 
bring  a  new  ejectment  on  the  title  of  his  principal) 
made  the  rule  absolute  to  stay  the  proceedings  until 
the  costs  of  the  first  action  were  paid,  (c) 

A  distinction  was  also  formerly  taken  as  to  the 
situation  of  the  parties  in  the  different  actions,  and 
it  was  holden,  that  if  the  defendant  in  the  second 

(a)  Short   v.  King,  Stran.  681.  Angel  v.  Angel,  6  T.  R.  740.     Doe 

Tredway  v.  Harbert,  Comb.  106.  d.  Feldon  v.  Roe,  8  T.  R.  645. 

(6)  Doed.  Hamilton  v.  Hatherly,  (c)  Doe  d.  Chadwickv.  Law,  Blk. 

Stran.  1152.  Thrustout  d.  Williams  1180. 
v.  Holdfast,  6  T.  R,  223.    Keene  d. 


OF   STAYING    PROCEEDINGS.  357 

ejectment  had  been  the  claimant  in  the  first,  the 
proceedings  should  not  be  stayed :  (a)  but  this  doc- 
trine is  now  also  exploded,  and  the  change  of  situa- 
tion in  the  parties  is  immaterial,  (b)  The  rule  will 
also  be  granted,  whether  the  merits  be  decided  in  the 
former  action,  or  whether  a  judgment  of  nonsuit,  or 
of  non-pros,  be  given :  nor  is  the  length  of  time 
which  elapses  between  the  two  actions  any  bar  to  the 
rule ;  for  many  good  reasons  may  exist  for  such  delay, 
as  the  poverty  of  the  other  party,  or  a  wish  to  end 
the  controversy,  (c) 

The  Courts  will  likewise  stay  the  proceedings  in  a 
second  ejectment  until  the  costs  of  a  former  one  be 
paid,  if  the  conduct  of  the  party,  against  whom  the 
application  is  made,  has  been  vexatious  or  oppressive, 
although  he  is  not  liable  to  the  costs  of  the  first 
action.  Thus,  where  the  lessor  of  the  plaintiff  in 
the  second  action  was  also  the  lessor  in  the  first,  and 
had  refused,  after  the  appearance  of  the  defendant  in 
such  first  action,  to  enter  into  the  consent  rule, 
whereby,  although  nonsuited  for  want  of  a  replica- 
tion, he  was  exempted  from  the  costs  of  the  defend- 
ant's appearance,  the  Court  would  not  let  him  proceed 
iu  the  second  ejectment  until  he  had  satisfied  the 
defendant  for  the  expenses  of  such  first  appearance,  (d] 
And,  upon  the  same  principle,  where  the  first  eject- 
ment was  on  the  demise  of  the  husband  and  wife, 
but  the  husband  alone  entered  into  the  consent  rule, 

(a)  Roberts  v.  Cook,  4  Mod.  379.  Keene  d.  Angel  v.  Angel,  6  T.  R. 

(6)  Thrustoutd.  Williams  o.Hold-  740.    Anon.  Salk.  255. 

fast,  6  T.  R.  223.  (d)  Smith  d.  Ginger  v.  Barnar- 

(c)  Dencev.  Doble,  Comb.  110.  diston,  Blk.  904.  Ante,  273. 


358  OF   STAYING    PROCEEDINGS. 

and  judgment  was  given  therein  in  the  Common  Pleas 
for  the  defendant,  (which  judgment  was  afterwards 
affirmed  in  the  King's  Bench  and  the  House  of  Lords,) 
and  after  the  death  of  the  husband,  the  wife  brought 
a  second  ejectment  on  her  own  demise  ;  the  Court 
would  not  suffer  her  to  proceed  until  the  costs  of  the 
first  ejectment  were  paid,  saying,  "  We  are  not 
going  to  compel  the  lessor  to  pay  the  costs,  but  only 
to  prevent  her  being  vexatious."  (a) 

In  a  recent  case,  in  which  claimants  under  very 
peculiar  circumstances  had  brought  three  actions,  in 
three  different  terms,  in  the  Court  of  King's  Bench, 
for  the  same  property,  and  all  three  were  pending 
together,  and  the  parties  had  not  proceeded  to  trial 
in  either,  but  several  orders  had  been  made  in  the 
first  cause,  and  the  defendants  had  obtained  a  rule 
calling  upon  the  plaintiff  to  show  cause  why  they 
should  not  elect  to  proceed  in  one  action  only,  and  in 
case  they  should  elect  to  proceed  in  either  of  the  two 
last  actions,  why  the  first  action  should  not  be  discon- 
tinued, and  the  costs  paid  by  the  claimants;  and  there- 
upon an  improvident  rule  was  agreed  to,  by  which 
the  proceedings  in  the  two  last  actions  were  stayed, 
and  the  claimants  were  to  proceed  to  trial  in  the  first 
action  under  great  disadvantages  as  to  costs,  and 
instead  of  proceeding  with  that  action,  they  brought  a 
new  ejectment  in  the  Court  of  Common  Pleas,  that 
Court  upon  motion  stayed  the  proceedings  therein,  (b) 

It  was  once    holden,  that    the  proceedings  in  a 

(a)  Doe  d.  Hamilton  v.  Hatherly,          (6)  Doe  d.  Carihevv  v.  Brenton, 
Stran.  1152.  6  Bing.  469. 


OP    STAYING    PROCEEDINGS.  359 

second  ejectment  ought  not  in  amj  case  to  be  stayed 
for  non-payment  of  the  costs  in  the  first  action,  if 
costs  were  not  of  right  payable  to  the  party  apply- 
ing ;  (a)  and  that  it  was  in  all  cases  necessary  to 
show,  that  the  party  against  whom  the  application 
was  made,  had  acted  vexatiously,  or  oppressively, 
before  the  rule  could  be  obtained.  But  these  maxims 
have  long  given  place  to  more  just  and  equitable  prin- 
ciples, (b) 

The  Court  has  also  ordered  the  proceedings  in 
a  second  ejectment  to  be  stayed  until  the  costs  of  an 
action  for  mesne  profits  (upon  which  the  lessor  in  the 
second  ejectment,  who  had  been  the  defendant  in  the 
first,  had  brought  a  writ  of  error)  as  well  as  the  costs 
of  the  first  ejectment,  were  paid,  (c)  But  the  Court 
will  not  extend  the  rule  to  include  the  damages  re- 
covered in  such  action  for  the  mesne  profits,  however 
vexatious  the  proceedings  of  the  party  may  have 
been,  (d) 

The  Courts  will  not  stay  the  proceedings  in  the 
second  action,  where  the  party,  against  whom  the 
application  is  made,  is  already  in  custody  under  an 
attachment  for  non-payment  of  the  costs  of  the  first 
action,  (d)  nor  will  they  include  the  taxed  costs  of  a 
suit  in  equity,  brought  by  the  same  party  for  the  same 
property,  as  well  as  the  costs  of  a  prior  ejectment,  in 


(a)  Thrustout  d.  Parke  v.  Trou-  (c)  Doe  d.  Pinckard  v.  Roe,  4 

blesome,  Stran.  1099.  S.  C.  And.  East.  585. 

297;  (d)  Doe  d.  Church  v.  Barclay,  15 

(6)  Short  v.  King,  Stran.  681.  East.  833. 


360  OF    STAYING    PROCEEDINGS. 

the  rule :  (a)  nor  will  they  stay  the  proceedings,  if  it 
clearly  appear  that  the  verdict  in  the  first  action  was 
obtained  by  fraud  and  perjury :  (A)  nor  will  they  in 
any  case  in  which  they  stay  the  proceedings  further 
interfere,  so  as  to  compel  the  claimant  to  pay  the  costs 
by  a  particular  day,  or  permit  the  defendant  to  non- 
pros the  action,  (c) 

There  is  no  particular  stage  of  the  proceedings  in 
which  it  is  necessary  to  move  the  Court,  or  take  out 
a  summons  for  this  rule.  It  will  be  granted  even 
before  the  defendant  has  appeared :  and  it  always 
should  be  moved  for  as  early  in  the  action  as  it  con- 
veniently can  be.  Where,  however,  satisfactory  rea- 
sons were  given  to  the  Court,  why  the  application 
was  not  made  at  an  earlier  stage  of  the  suit,  the  Court 
ordered  the  proceedings  to  he  stayed  until  the  costs 
of  a  former  ejectment  were  paid,  after  a  notice  of 
trial  had  been  given,  and  the  lessor  of  the  plaintiff 
had  been  at  the  expense  of  bringing  his  witnesses  to 
the  place  of  trial,  (d)  The  reasons  assigned  to  the 
Court  were,  that  the  cause  was  so  clear  at  the  last 
trial,  and  the  parties  had  delayed  so  long  commencing 
their  second  action  (four  years,)  that  the  defendants 
did  not  think  them  in  earnest  until  notice  of  trial  was 
given,  and  that  the  defendant  then  proceeded  to  tax 
his  costs,  in  order  to  ground  the  application,  which 
otherwise  he  would  not  have  done,  the  lessor  of  the 
plaintiff  being  insolvent. 

(a)  Doe  d.  Williams  v.  Winch.  3  (c)  Doe  d.  Sutton  v.  Ridgway,  5 
B.  &  A.  602.  B.  &  A.  523. 

(b)  Doe  d.  Rees  c .  Thomas,  2  B.  (d)  Doe  v.  Law,  Blk.  1158. 
&C.  622. 


OP   STAYING    PROCEEDINGS.  361 

The  Courts  will  also  stay  proceedings  when  the 
lessor  of  the  plaintiff  has  two  actions  depending,  at 
the  same  time,  for  the  same  premises,  in  the  same 
or  different  courts ;  and  the  proceedings  in  the  one 
action  will  then  be  stayed,  until  the  other  action  is 
determined,  (a)  And  in  a  case  where  the  claimant 
brought  thirty-seven  separate  ejectments  for  thirty- 
seven  different  houses,  all  of  which  depended  on  the 
same  title,  the  Court  said  it  was  a  scandalous  pro- 
ceeding, stayed  the  proceedings  in  thirty-six  of  them, 
and  made  a  rule  that  they  should  abide  the  event 
of  the  thirty-seventh,  (b) 

When  the  party,  against  whom  a  verdict  in  eject- 
ment has  been  obtained,  brings  a  writ  of  error,  and 
pending  that  writ  commences  a  second  ejectment,  the 
Court  will  order  the  proceedings  in  the  second  action 
to  be  stayed  until  the  writ  of  error  is  determined  ;  and 
it  seems  also,  that  if  it  do  not  appear  to  the  Court,  that 
the  writ  of  error  was  brought  with  some  other  view 
than  to  keep  off  the  payment  of  costs,  proceedings 
will  be  stayed  until  the  costs  of  the  first  action  are  paid, 
notwithstanding  such  costs  are  suspended  by  the  writ 
of  error,  (c) 

By  the  statute  7  Geo.  II.  c.  20.  s.  1,  it  is  enacted, 
"  that  when  an  ejectment  is  brought  by  a  mortgagee, 
his  heirs,  &cc.  for  the  recovery  of  the  possession  of  the 

(a)  Thrustout  d.  Park  v.  Trouble-  (V)  2  Sell.  Prac.  144.  Ante,  264. 

some,  And.  297.    S.  C.  Stran.  1099.  (c)  Fenwick  v,  Grosvenor,!  Salk. 

Doe  d.  Carthew  w.  Brenton,  6  Ding.  258.  Grumble  v.  Bodily,  Stran.  554. 
469. 


362  OP    STAYING    PROCEEDINGS. 

mortgaged  premises,  and  no  suit  is  depending  in  any 
court  of  equity,  for  the  foreclosing  or  redeeming  of 
such  mortgaged  premises,  if  the  person  having  a  right 
to  redeem,  having  been  made  the  defendant  in  the 
action,  shall  at  any  time,  pending  the  suit,  pay  to  the 
mortgagee,  or  in  case  of  his  refusal,  bring  into  court, 
all  the  principal  monies,  and  interest  due  on  the 
mortgage,  and  also  costs  to  be  computed  by  the  Court, 
or  proper  officer  appointed  for  that  purpose;  the 
same  shall  be  deemed  and  taken  to  be  a  full  satisfac- 
tion and  discharge  of  the  mortgage,  and  the  Court 
shall  discharge  the  mortgagor  of  and  from  the  same 
accordingly."  By  the  third  section,  the  act  is  not  to 
extend  to  any  case  where  the  person,  against  whom 
the  redemption  is  prayed,  shall  insist  either  that  the 
party  praying  a  redemption  has  not  a  right  to  redeem, 
or  that  the  premises  are  chargeable  with  other  sums 
than  what  appear  on  the  face  of  the  mortgage,  or  are 
admitted  by  the  other  side,  nor  to  any  case  where  the 
right  of  redemption  in  any  cause,  or  suit,  shall  be 
controverted  or  questioned,  by  or  between  different 
defendants  in  the  same  cause  or  suit. 

An  application  for  a  rule  to  stay  proceedings  under 
this  statute,  (a)  must  of  course  be  made  before  execution 
executed,  and  must  be  accompanied  by  an  affidavit 
that  no  suit  in  equity  is  depending.  The  party 
should  also  appear  to  the  action  before  the  application 
is  made,  for  the  Courts  have  no  power  to  interfere 
under  the  statute  until  after  appearance.  But  where 

(«)  Append.  No.  46. 


OF    STAYING    PROCEEDINGS.  363 

the  premises  were  in  possession  of  a  tenant  of  the 
mortgagor,  who  neglected  to  appear  to  the  action,  in 
consequence  of  which  the  mortgagee  recovered  pos- 
session of  the  premises  under  a  judgment  by  default 
against  the  casual  ejector,  the  Court  of  Common  Pleas 
(if  the  other  party  had  not  consented  to  take  what 
was  due  upon  the  mortgage,  and  restore  the  posses- 
sion) would  have  set  the  judgment  and  execution 
aside,  in  order  to  let  the  mortgagor  in  as  defendant, 
and  place  him  in  a  condition  to  apply  to  the  Court  to 
stay  the  proceedings  on  the  terms  of  the  statute,  (a) 

In  a  case  in  the  Court  of  King's  Bench  where  a 
mortgagee  made  a  will,  leaving  all  his  property  to 
executors  upon  certain  trusts,  and  died,  and  his  will 
was  disputed  by  his  heir  in  the  Prerogative  Court,  but 
by  the  sentence  of  that  Court  established,  and  letters 
testamentary  in  consequence  granted  to  the  executors ; 
after  which  grant  the  heir  appealed  to  the  Court  of 
Delegates  against  the  sentence  of  the  Prerogative 
Court,  pending  which  appeal  the  executors  assigned 
the  mortgage  to  the  lessor  of  the  plaintiff,  who  also 
pending  the  appeal,  brought  an  ejectment  against 
the  mortgagor  for  the  recovery  of  the  mortgaged 
premises,  to  which  ejectment  the  mortgagor  did  not 
appear,  but  suffered  judgment  to  go  by  default  against 
the  casual  ejector.  Upon  an  application  on  the  part 
of  the  mortgagor  (accompanied  by  an  affidavit  of  the 
facts)  to  stay  the  execution  until  the  determination  of 
the  appeal,  upon  the  ground,  that  the  title  of  the 
lessor  would  be  invalidated,  provided  the  appeal  were 
given  in  favour  of  the  heir,  and  that  the  defendant 

(a)  Doe  d.  Tubb  i>.  Roe,  4  Taunt.  887. 


364  OF    STAYING    PROCEEDINGS. 

might  then  perhaps  be  compelled  to  pay  the  mortgage- 
money  twice,  the  Court  made  the  following  order : 
u  That  the  execution  obtained  by  the  lessor  of  the 
plaintiff  in  this  action  of  ejectment,  be  stayed  until  such 
time  as  the  appeal,  now  pending  before  the  Court  of 
Delegates,  be  determined,  upon  the  defendant  vesting 
the  mortgage -money,  interest,  and  costs  to  be  taxed 
by  the  Master,  in  Exchequer  bills,  and  depositing 
such  Exchequer  bills  in  the  hands  of  the  signer  of 
the  writs  in  this  Court."  (a) 

A  rule  upon  this  statute  has  been  granted  after  an 
agreement,  on  the  part  of  the  mortgagor,  to  convey 
the  equity  of  redemption  to  the  mortgagee,  where  no 
tender  of  a  deed  of  conveyance  for  execution  had 
been  made  to  the  defendant,  or  bill  in  equity  filed  j  (b) 
but  where  it  appeared  that,  subsequently  to  the  de- 
fendant's agreement,  several  applications  had  been 
made  to  him,  but  without  effect,  to  complete  the  pur- 
chase, the  Court  refused  to  stay  the  proceedings,  (c) 

In  a  case  where,  upon  an  application  by  the 
mortgagor  to  stay  proceedings  under  this  statute,  it 
appeared  that  he  had  also  ^taken  up  money  from  the 
mortgagee  upon  his  bond,  the  Court  granted  the  rule 
upon  the  payment  of  the  mortgage  and  interest  only, 
the  bond  debt  not  being  a  lien  upon  the  lands ;  but  it 
seems  that  when  in  such  case  the  heir  is  bound  by  the 

(a)  Doe  d.  May  hew  v.   Erlam,  appeared  to  the  action. 

MS.  M.T.  1811.    The  Court  did  (6)  Skinner  v.  Stacey,  1  Wils.  80. 

not  in  this  case  advert  to  the  cir-  (c)  Goodtitle  d.  Taysum  v.  Pope, 

cumstance    that    the    mortgagor,  7  T.  R.  185. 
who  made  the  application,  had  not 


OP    STAYING    PROCEEDINGS.  365 

bond,  and  the  mortgagor  dies,  the  heir  must  discharge 
the  bond  debt,  as  well  as  the  mortgage,  (a)  Where, 
however,  the  bond  was  a  lien  on  the  estate,  and  the 
mortgagee  had  given  notice  to  the  mortgagor,  that  he 
should  insist  upon  payment  of  the  money  due  upon  it, 
the  Court  refused  to  stay  the  proceedings,  upon  pay- 
ment of  the  mortgage-money  only,  (b]  Where  also 
other  mortgages,  although  upon  different  premises, 
existed  between  the  defendant  and  the  claimant,  the 
Court  would  not  stay  proceedings  under  this  statute, 
upon  the  payment  of  the  sum  due  upon  one  of  the 
mortgages  only,  (c) 

If  upon  a  motion  of  this  nature,  any  doubt  exist  as 
to  the  amount  of  what  is  due  between  the  parties,  the 
Court  of  King's  Bench  will  refer  the  case  to  the  mas- 
ter, and  the  Court  of  the  Common  Pleas  to  the  pro- 
thonotary,  whose  respective  duty  it  is  to  tax  the  costs ; 
and  in  a  case  where  an  affidavit  was  made,  that  the 
mortgagee  had  been  at  great  expense  in  necessary  re- 
pairs of  part  of  the  premises  in  his  possession  (the 
ejectment  being  brought  for  the  residue,)  and  it  was 
prayed,  that  the  prothonotary  might  be  directed  to 
make  allowance  for  such  repairs ;  the  Court  said,  that 
the  rule  must  follow  the  words  of  the  statute,  and  that 
the  prothonotary  would  make  just  allowances  and  de- 


fa)  Bingham  d.  Lane  v.  Gregg,  of  this  case,  that  the  other  mort- 
Barn.  182.     Archer  d.  Hankey  v.  gaged  premises  were  included  in 
Snapp,And. 341.  S.C.Stran.  1107,  the  ejectment;  but  it  is  difficult  to 
and  the  cases  there  cited.  reconcile  the  decision  either  to  the 
(6)  Felton  v.  Ash,  Barn.  177.  letter  or  spirit  of  the  statute,  unless 
(c)  Roe  d.  Kaye  v.  Soley,  Blk.  726.  they  were  also  contained  in  the  de- 
It  does  not  appear  from  the  report  claration. 


366  OP    STAYING    PROCEEDINGS. 

d actions,  (a)  If,  however,  after  taxation,  the  debt 
and  costs  are  not  paid,  the  lessor  must  proceed  in  the 
suit,  and  cannot  have  an  attachment,  (b) 

The  cases  in  which  the  Courts  have  stayed  the  pro- 
ceedings under  stat.  4  Geo.  II.  c.  28,  have  already 
been  considered,  (c) 

The  Court  would  not  stay  proceedings  in  an  action 
brought  by  the  provisional  assignee  of  the  Insolvent 
Debtor's  Court,  on  an  objection  that  it  was  not 
proved  at  the  trial  of  the  cause  that  the  assignee  had, 
pursuant  to  stat.  1  Geo.  IV.  c.  119.  s.  11,  the 
authority  of  the  Insolvent  Debtor's  Court  to  pro- 
ceed, (d) 

(a)  Goodright  v.  Moore,  Barn.         (c)  Ante,  169, &c.  Append. No. 47. 
176.  (d)  Doe  d.  Spencer  v.  Clarke,  3 

(6)  Hand  v.  Dinely,  Stran.  1220.      Bing.  370. 


367 


CHAPTER  XIII. 


Of  the  Statutes  1  Geo.  IV.  c.  87,  and  1  Wm.  IV. 


c.  70. 


THE  protracted  period  during  which,  dishonest  or  in- 
solvent tenants  are  enabled,  by  the  ordinary  course  of 
law,  to  retain  possession  of  their  farms  after  the  de- 
termination of  their  interest,  has  long  been  productive 
of  serious  evils  to  landowners.  Unless  a  tenancy  ex- 
pires at  Christmas,  upwards  of  six  months  will  always, 
and  eight  or  nine  months  will  frequently,  elapse,  be- 
fore final  judgment  and  execution  can  be  obtained;  and 
during  the  whole  of  that  period  the  tenant  has  the  un- 
controlled power  of  suffering  the  land  to  remain  uncul- 
tivated, or  of  committing  wilful  destruction,  as  his  tem- 
per or  immediate  interests  may  prompt.  The  legis- 
lative provisions  of  the  stat.  4  Geo.  II.  c.  28,  enacting 
that  tenants  holding  over  shall  pay  double  the  yearly 
value  of  the  land,  affords  no  efficient  relief  in  cases 
of  this  description.  These  frauds  are  not  committed 
by  respectable  or  responsible  tenants  ;  and  when  the 
tenant  is  insolvent  or  dishonest,  the  judgment  of  the 
Insolvent  Debtor's  Court  gives  but  an  unsubstantial  re- 
medy for  the  injury  which  the  landlord  has  sustained. 


368  OF    THE    STATUTE 

To  lessen,  and  in  a  great  degree  remedy,  these 
evils,  the  beneficial  statutes  now  under  consideration 
have  been  passed,  and  the  general  effect  of  them  is 
as  follows.  They  enable  the  landlord,  when  the 
tenant  holds  under  an  agreement  in  writing,  to  com- 
pel him  before  he  is  admitted  to  defend,  to  give  secu- 
rity for  the  damages  and  costs  of  the  action,  and  that 
he  will  relinquish  possession  within  four  days  after 
the  trial,  unless  he  shall,  within  that  time,  give  further 
security  that  he  will  not  commit  waste,  or  otherwise 
injure  the  land,  before  the  ordinary  time  of  obtaining 
judgment  or  execution.  And  they  also  enable  the 
landlord  in  all  cases,  whether  the  holding  has  been  in 
writing  or  by  parol,  to  bring  his  cause  to  trial  at  the 
assizes  next  following  the  expiration  of  the  tenancy, 
unfettered  by  the  machinery  of  terms  and  returns ; 
as  likewise  to  recover  the  mesne  profits  as  well  as 
the  land  itself  in  the  ejectment,  and  to  obtain  posses- 
sion immediately  after  the  trial,  if  the  judge  shall  cer- 
tify his  opinion  on  the  record  that  he  ought  to  do 
so. 

By  stat.  4  Geo.  I.  c.  87,  after  reciting  the  losses  to 
which  landlords  were  exposed  by  the  law  as  it  then  stood, 
it  was  enacted,  "  That  where  the  term  or  interest  of 
"  any  tenant,  holding  under  a  lease  or  agreement  in 
"  writing  any  lands,  &c.  for  any  term  or  number  of 
"  years  certain,  (a)  or  from  year  to  year,  shall  have  ex- 
"  pired  or  been  determined  either  by  the  landlord  or 
"  tenant  by  regular  notice  to  quit,  (a)  and  such  tenant, 

or  any  one  holding  or  claiming  by  or  under  him,  shall 

(a)  Post.  374. 


(C 


1  GEO.  iv.  c.  87.  369 

(e  refuse  to  deliver  up  possession  accordingly,  after 
"  lawful  demand  in  writing  made  and  signed  by  the 
"  landlord  or  his  agent,  and  served  personally  upon, 
' e  or  left  at  the  dwelling-house  or  usual  place  of  abode 
"  of  such  tenant  or  person,  and  the  landlord  shall 
"  thereupon  proceed  by  action  of  ejectment  for  the 
t(  recovery  of  possession,  it  shall  be  lawful  for  him,  at 
"  the  foot  of  the  declaration,  to  address  a  notice  to 
"  such  tenant  or  person,  requiring  him  to  appear  in 
"  the  court  in  which  the  action  shall  have  been  com- 
"  menced,  on  the  first  day  of  term  then  next  folio  w- 
"  ing,  (a)  or  if  the  action  shall  be  brought  in  Wales,  or 
"  in  the  counties  Palatine  of  Chester,  Lancaster,  or 
"  Durham  respectively,  then  on  the  first  day  of  the 
se  next  session  or  assize,  or  at  the  court  day,  or  other 
"  usual  period  for  appearance  to  process  then  next 
"  following,  (as  the  case  may  be,)  there  to  be  made 
"  defendant,  and  to  find  such  bail,  if  ordered  by  the 
(t  Court,  and  for  such  purposes,  as  are  hereinafter 
ee  next  specified ;  and  upon  the  appearance  of  the 
"  party  at  the  day  prescribed,  or  in  case  of  non- 
"  appearance  on  making  the  usual  affidavit  of  ser- 
f<  vice  of  the  declaration  and  notice,  it  shall  be  lawful 
"  for  the  landlord,  producing  the  lease  or  agreement, 
"  or  some  counterpart  or  duplicate  thereof,  and  prov- 
"  ing  the  execution  of  the  same  by  affidavit,  and  upon 
"  affidavit  (6)  that  the  premises  have  been  actually  en- 
"  joyed  under  such  lease  or  agreement,  and  that  the 
"  interest  of  the  tenant  has  expired,  or  been  deter- 
"  mined  by  regular  notice  to  quit,  as  the  case  may 
"  be,  and  that  possession  has  been  lawfully  demanded 

(o)  Post.  375.  .(*)  Ante,  246. 

B  B 


370  OF   THE    STATUTE 

ee  in  manner  aforesaid,  to  move  the  Court  for  a  rule 
"  for  such  tenant  or  person  to  show  cause,  within  a 
"  time  to  be  fixed  by  the  Court  on  a  consideration 
"  of  the  situation  of  the  premises,  why  such  tenant 
"  or  person,  upon  being  admitted  defendant,  besides 
"  entering  into  the  common  rule,  and  giving  the  com- 
"  mon  undertaking,  should  not  undertake,  in  case  a 
"  verdict  shall  pass  for  the  plaintiff,  to  give  the  plain- 
"  tiff  a  judgment,  to  be  entered  up  against  the  real 
"  defendant,  of  the  term  next  preceding  the  time  of 
"  trial,  or  if  the  action  shall  be  brought  in  Wales,  or 
"  in  the  counties  Palatine  respectively,  then  of  the 
"  session,  assize,  or  court  day,  (as  the  case  may  be) 
"  at  which  the  trial  shall  be  had,  and  also  why  he 
(e  should  not  enter  into  a  recognizance,  by  himself 
"  and  two  sufficient  sureties,  in  a  reasonable  sum, 
"  conditioned  to  pay  the  costs  and  damages  which 
e '  shall  be  recovered  by  the  plaintiff  in  the  action  ; 
"  and  it  shall  be  lawful  for  the  Court,  upon  cause 
"  shown,  or  upon  affidavit  of  the  service  of  the  rule 
"  in  case  no  cause  shall  be  shown,  to  make  the  same 
"  absolute  in  the  whole,  or  in  part,  and  to  order  such 
"  tenant  or  person,  within  a  time  to  be  fixed,  upon 
' '  a  consideration  of  all  the  circumstances,  to  give 
"  such  undertaking,  and  find  such  bail,  with  such 
"  conditions  and  in  such  manner  as  shall  be  specified 
(<  in  the  said  rule,  or  such  part  of  the  same  so  made 
"  absolute ;  and  in  case  the  party  shall  neglect  or 
"  refuse  so  to  do,  and  shall  lay  no  ground  to  induce 
"  the  Court  to  enlarge  the  time  for  obeying  the  same, 
te  then  upon  affidavit  of  the  service  of  such  order  an 
"  absolute  rule  shall  be  made  for  entering  up  judg- 
"  ment  for  the  plaintiff." 


1  OEO.  iv.  c.  87.  371 

By  section  2,  it  is  further  enacted,  "  That  wher- 
"  ever  it  shall  appear  on  the  trial  of  any  ejectment,  at 
"  the  suit  of  a  landlord  against  a  tenant,  that  such 
"  tenant,  or  his  attorney,  hath  been  served  with  due 
"  notice  of  trial,  the  plaintiff  shall  not  be  nonsuited 
"  for  default  of  the  defendant's  appearance,  or  of 
c '  confession  of  lease,  entry,  and  ouster,  but  the  pro- 
' '  duction  of  the  consent  rule  and  undertaking  of  the 
"  defendant  shall,  in  all  such  cases,  be  sufficient  evi- 
"  dence  of  lease,  entry,  and  ouster ;  and  the  Judge 
"  before  whom  such  cause  shall  come  on  to  be  tried 
"  shall,  whether  the  defendant  shall  appear  upon 
"  such  trial  or  not,  permit  the  plaintiff  on  the  trial, 
"  after  proof  of  his  right  to  recover  possession  of  the 
"  whole,  or  of  any  part  of  the  premises  mentioned  in 
"  the  declaration,  to  go  into  evidence  of  the  mesne  pro- 
4f  fits  thereof,  (a)  which  shall,  or  might  have  accrued 
"  from  the  day  of  the  expiration  or  determination 
"  of  the  tenant's  interest  in  the  same,  down  to  the 
"  time  of  the  verdict  given  in  the  cause,  or  to  some 
"  preceding  day  to  be  specially  mentioned  therein ; 
"  and  the  jury  on  the  trial,  finding  for  the  plaintiff, 
"  shall,  in  such  case,  give  their  verdict  upon  the 
"  whole  matter,  both  as  to  the  recovery  of  the  whole 
"  or  any  part  of  the  premises,  and  also  as  to  the 
"  amount  of  the  damages  to  be  paid  for  such  mesne 
te  profits :  provided  always,  that  nothing  herein- 
"  before  contained  shall  be  construed  to  bar  any 
"  such  landlord  from  bringing  an  action  of  trespass 
"  for  the  mesne  profits  which  shall  accrue  from  the  ver- 
"  diet,  or  the  day  so  specified  therein,  down  to  the 

(a)  Post  380 

B  B  2 


372  OF    THE    STATUTE 

"  day  of  the  delivery  of  possession  of  the  premises 
"  recovered  in  the  ejectment."  (a) 

By  section  3,  it  is  further  enacted,  "  That  in  all 
((  cases  in  which  such  undertaking  shall  have  been 
"  given,  and  security  found  as  aforesaid,  if  upon  the 
"  trial  a  verdict  shall  pass  for  the  plaintiff,  but  it 
"  shall  appear  to  the  Judge,  before  whom  the  same 
"  shall  have  been  had,  that  the  finding  of  the  jury 
"  was  contrary  to  the  evidence,  or  that  the  damages 
ft  given  were  excessive,  it  shall  be  lawful  for  the 
"  Judge  to  order  the  execution  of  the  judgment  to  be 
"  stayed  absolutely  till  the  fifth  day  of  the  term  then 
"  next  following,  or  till  the  next  session,  assize  or 
ee  court  day,  (as  the  case  may  be  ;)  which  order  the 
"  Judge  shall  in  all  other  cases  make  upon  the  requi- 
"  sition  of  the  defendant,  in  case  he  shall  forthwith 
{(  undertake  to  find,  and  on  condition  that,  within 
"  four  days  from  the  day  of  the  trial,  he  shall  actually 
"  find  security  by  the  recognizance  of  himself  and 
"  two  sufficient  sureties,  in  such  reasonable  sum  as 
"  the  Judge  shall  direct,  conditioned  not  to  commit 
"  any  waste,  or  act  in  the  nature  of  waste,  or  other 
"  wilful  damage,  and  not  to  sell  or  carry  off  any 
"  standing  crops,  hay,  straw,  or  manure  produced  or 
te  made  (if  any)  upon  the  premises,  and  which  may 
"  happen  to  be  thereupon,  from  the  day  upon  which 
"  the  verdict  shall  have  been  given,  to  the  day  on 
"  which  execution  shall  finally  be  made  upon  the 
"  judgment,  or  the  same  be  set  aside;  as  the  case  may 
"  be :  Provided  always,  that  the  recognizance  last 

(a)  Post.  380. 


1  GEO.  iv.  c.  87.  373 

"  above  mentioned  shall  immediately  stand  discharged 
"  and  be  of  no  effect,  in  case  a  writ  of  error  shall  be 
<(  brought  upon  such  judgment,  and  the  plaintiff  in 
"  such  writ  shall  become  bound  with  two  sufficient 
"  sureties  unto  the  defendant  in  the  same,  in  such 
((  sum  and  with  such  conditions  as  may  be  conform- 
"  able  to  the  provisions  respectively  made  for  staying 
"  execution  on  bringing  writs  of  error  upon  judg- 
"  ments  in  actions  of  ejectment,  by  an  Act  passed  in 
"  England  in  the  sixteenth  and  seventeenth  years  of 
"  the  reign  of  King  Charles  the  Second,  and  by  an 
"  Act  passed  in  Ireland  in  the  seventeenth  and 
"  eighteenth  years  of  the  reign  of  the  same  king, 
"  which  Acts  are  respectively  intitled,  An  Act  to 
"  prevent  arrests  of  judgment,  and  superseding 
(t  executions." 

Section  4  enacts,  ' '  That  all  recognizances  and  se- 
"  curities  entered  into  pursuant  to  the  provisions  of 
"  this  Act,  may  and  shall  be  taken  respectively  in 
"  such  manner,  and  by  and  before  such  persons  as 
"  are  provided  and  authorised  in  respect  of  recog- 
"  nizances  of  bail,  upon  actions  and  suits  depending 
"  in  the  court  in  which  any  such  action  of  ejectment 
"  shall  have  been  commenced:  and  that  the  officer 
"  of  the  same  court,  with  whom  recognizances  of  bail 
"  are  filed,  shall  file  such  recognizances  and  secu- 
"  rities,  for  which  respectively  the  sum  of  two  shil- 
"  lings  and  six-pence,  and  no  more,  shall  be  paid, 
"  but  no  action,  or  other  proceeding,  shall  be  coni- 
"  menced  upon  any  such  recognizance  or  security, 
"  after  the  expiration  of  six  months  from  the  time 
"  when  possession  of  the  premises,  or  any  part 


374  OF    THE    STATUTE 

"  thereof,  shall  actually  have  been  delivered  to  the 
"  landlord." 

The  6th  section  relates  only  to  the  Welsh  juris- 
diction now  abolished  ;  (a)  and  by  the  7th,  8th,  and 
9th  sections,  Scotland  is  exempted  from  the  opera- 
tion of  the  act,  all  other  remedies  of  landlords  are 
retained,  and  double  costs  are  given  to  the  defendant 
if  he  obtain  a  verdict,  or  the  plaintiff  be  nonsuited 
on  the  merits. 

A  tenancy  by  virtue  of  an  agreement  in  writing, 
for  three  months  certain,  is  a  tenancy  within  the 
meaning  of  this  statute,  because  it  is  a  tenancy  "  for  a 
term  certain;"  (b)  but  a  tenancy  for  years  determinable 
on  lives  is  not,  because  it  is  not  a  holding  for  "a 
number  of  years  certain."  (c]  So  likewise  a  holding 
by  parol  from  year  to  year  is  not  within  the  statute, 
the  words  in  writing  extending  to  the  whole  sentence, 
and  not  being  confined  to  holdings  for  a  term,  or 
number  of  years  certain,  (d)  The  statute  also  only 
applies  to  cases,  where  the  lease  or  term  has  expired 
by  the  mere  efflux  of  time,  and  not  to  a  tenancy 
determined  by  a  notice  to  quit,  either  from  or  to  the 
landlord,  where  there  is  a  subsisting  lease  for  a  term 
of  years,  determinable  at  the  end  of  a  certain  num- 
ber of  them,  and  so  determined  by  a  notice  under  the 
lease,  (e) 


(a)  Stat.  1  W.  IV.  c.  70.  (rf)  Doe  d.  Earlt  of  Bradford  v. 

(6)  Doe  d.  Phillips  v.  Roe,  5  B.  Roe,  5  B.&  A.7TO. 

&  A.  766.  (e)  Doe  d.  Lord  Cardigan  v.  Roe, 

(c)  Doe  d.  Pemberton  v.  Roe,  7  K.  B.  T.  T.  3  Geo.  IV.  MS.  S.  C. 

B.&C.  2.  1D.&R.  540. 


1  GEO.  iv.  c.  87.  375 

The  Court  will  only  direct  recognizances  to  be 
entered  into  under  this  statute,  on  the  appearance  of 
the  defendant,  for  the  costs  of  the  action,  and  not  for 
the  mesne  profits,  (a) 

The  notice  at  the  foot  of  the  declaration  required 
by  this  statute,  should  be  signed  by  the  landlord  or 
his  attorney,  and  should  be  in  addition  to,  and  not 
form  part  of,  the  ordinary  notice  signed  by  the  casual 
ejector.  (&) 

• 

Where  upon  showing  cause  against  a  rule  obtained 
under  this  statute,  upon  an  affidavit  stating  a  tenancy 
from  year  to  year,  under  a  written  agreement,  and 
that  the  tenant's  interest  had  been  duly  determined  by 
a  notice  to  quit,  and  that  there  had  been  a  written 
demand  of  possession,  and  that  the  tenant  had 
been  served  with  the  declaration  on  April  24,  1830, 
it  was  sworn  by  the  defendant,  that  long  after 
the  service  of  the  notice  to  quit,  which  expired  on 
March  25,  1829,  he  saw  the  steward  of  his  landlord, 
and  retook  the  premises  by  parol,  and  that  he  had 
rented  and  held  them  under  such  parol  agreement, 
from  the  said  29th  of  March  to  that  time,  and  that  he 
was  advised  there  was  a  valid  tenancy  then  existing, 
and  that  he  had  a  good  defence  to  the  action,  the 
Court  of  Common  Pleas  made  the  rule  absolute, 
because  the  affidavit  only  deposed  that  he  retook  the 
premises,  without  stating  for  what  period,  or  on  what 
terms;  and  therefore, -that  in  the  absence  of  satis- 


(a)  Doe  d.  Sampson  v.  Roe,  6  B.         (b)  Anon.  1  D.  &  R.  435.  Doe  d. 
Moore,  54.  Sampson  v.  Roe,  (5  B.  Moore,  54. 


376  OF    THE    STATUTE 

factory  evidence  of  a  new  taking,  the  case  was  within 
the  act.  (a) 

By  stat.  1  Wra.  IV.  c.  70.  s.  36,  after  reciting  the 
delays  suffered  by  landlords  in  recovering  possession 
of  their  lands,  it  is  enacted,  "  that  in  all  actions  of 
"  ejectment  to  be  brought  in  any  of  his  Majesty's 
"  Courts  at  Westminster  by  any  landlord  against  his 
"  tenant,  or  against  any  person  claiming  through  or 
"  under  such  tenant,  for  the  recovery  of  any  lands  or 
"  hereditaments  where  the  tenancy  shall  expire,  or 
ee  the  right  of  entry  into  or  upon  such  lands  or  here- 
"  ditaments  shall  accrue  to  such  landlord,  in  or  after 
"  Hilary  or  Trinity  Terras  respectively,  it  shall  be 
"  lawful  for  the  lessor  of  the  plaintiff  in  any  such 
"  action,  at  any  time  within  ten  days  after  such 
"  tenancy  shall  expire,  or  right  of  entry  accrue  as 
"  aforesaid,  (6)  to  serve  a  declaration  in  ejectment,  en- 
"  titled  of  the  day  next  after  the  day  of  the  demise  in 
"  such  declaration,  whether  the  same  shall  be  in  term 
(<  or  in  vacation,  (c)  with  a  notice  thereunto  subscribed, 
"  requiring  the  tenants  in  possession  to  appear  and 
"  plead  thereto,  within  ten  days  in  the  Court,  in  which 
tf  such  action  may  be  brought;  (d)  and  proceedings 
"  shall  be  had  on  such  declaration,  and  rules  to  plead 
"  entered  and  given,  in  such  and  the  same  manner, 
"  as  nearly  as  may  be,  as  if  such  declaration  had 
"  been  duly  served  before  the  preceding  term :  Pro- 
"  vided  always,  that  no  judgment  shall  be  signed 
"  against  the  casual  ejector  until  default  of  appear- 

(a)    Roe  d,    Durant  v.   Doe,   6          (c)  Ante,  207, 208. 
Bing.  574.  (rf)Ante,  230.  249. 

(t)  Ante,  247. 


1  WM.  iv.  c.  70.  377 

"  ance  and  plea  within  such  ten  days,  and  that  at 
"  least  six  clear  days'  notice  of  trial  shall  be  given 
"  to  the  defendant  before  the  commission  day  of 
"  the  assizes  at  which  such  ejectment  is  intended  to 
1 '  be  tried ;  provided  also,  that  any  defendant  in 
"  such  action  may,  at  any  time  before  the  trial 
"  thereof,  apply  to  a  judge  of  either  of  his  Majesty's 
"  superior  Courts  at  Westminster,  by  summons  in 
<c  the  usual  manner,  for  time  to  plead,  or  for  staying 
"  or  setting  aside  the  proceedings,  or  for  postponing 
"  the  trial  until  the  next  assizes;  and  that  it  shall  be 
"  lawful  for  the  Judge  in  his  discretion  to  make  such 
"  order  in  the  said  cause  as  to  him  shall  seem 
"  expedient." 

By  section  37,  it  is  enacted,  "that  in  making  up 
"  the  record  of  the  proceedings  on  any  such  de- 
"  claration  in  ejectment,  it  shall  be  lawful  to  entitle 
"  such  declaration  specially  of  the  day  next  after  the 
ff  day  of  the  demise  therein,  whether  such  day  shall 
((  be  in  term  or  in  vacation,  and  no  judgment  there- 
"  upon  shall  be  avoided  or  reversed  by  reason  only 
"  of  such  special  title."  (a) 

And  by  section  38,  it  is  enacted,  "  that  in  all 
"  cases  of  trials  of  ejectments  at  Nisi  Prius,  when  a 
"  verdict  shall  be  given  for  the  plaintiff,  or  the 
"  plaintiff  shall  be  nonsuited  for  want  of  the  defend- 
"  ant's  appearance  to  confess  lease,  entry,  or  ouster, 
f<  it  shall  be  lawful  for  the  Judge,  before  whom  the 
"  cause  shall  be  tried,  to  certify  his  opinion  on  the 

(«)  Ante,  207. 


378  OP   THE    STATUTE    1    WM.    IV.    C.    70. 

"  back  of  the  record,  that  a  writ  of  possession  ought 
"  to  issue  immediately,  and  upon  such  certificate  a 
"  writ  of  possession  may  be  issued  forthwith ;  (a)  and 
"  the  costs  may  be  taxed,  and  judgment  signed  and 
"  executed  afterwards  at  the  usual  time,  as  if  no 
tf  such  writ  had  issued  :  Provided  always,  that  such 
<e  writ,  instead  of  reciting  a  recovery  by  judgment 
"  in  the  form  now  in  use,  shall  recite  shortly  that 
"  the  cause  came  on  for  trial  at  Nisi  Prius  at 
"  such  a  time  and  place  and  before  such  a  Judge, 
"  (naming  the  time,  place,  and  judge,)  and  that 
"  thereupon  the  said  Judge  certified  his  opinion 
"  that  a  writ  of  possession  ought  to  issue  imme- 
((  diately." 

(d)  Appendix,  No.  37. 


379 


CHAPTER  XIV. 


Of  the  Action  for  Mesne  Profits. 


WHILST  the  action  of  ejectment  remained  in  its 
original  state,  and  the  ancient  practice  prevailed,  the 
measure  of  the  damages  given  by  the  jury,  when  the 
plaintiff  recovered  his  term,  were  the  profits  of  the 
land  accruing  during  the  tortious  holding  of  the  de- 
fendant. But  as  upon  the  introduction  of  the  modern 
system,  the  proceedings  became  altogether  fictitious, 
and  the  plaintiff  merely  nominal,  the  damages  assessed 
became  nominal  also  ;  and  they  have  not  since  that 
time  included  the  injury  sustained  by  the  claimant 
from  the  loss  of  his  possession.  It  was  therefore  ne- 
cessary to  give  another  remedy  to  the  claimant  for 
these  damages;  and  this  was  effected  by  a  new  ap- 
plication of  the  common  action  of  trespass  vi  et  armis, 
generally  termed  an  action  for  mesne  profits  :  (a)  in 
which  action,  the  plaintiff  complains  of  his  ejection 
and  loss  of  possession,  states  the  time  during  which 
the  defendant  (the  real  tenant)  held  the  lands  and 

(a)  Reev.  E.  L.  -i  vol.  169. 


380  OF    THE    ACTION 

took  the  rents  and  profits,  and  prays  judgment  for  the 
damages  which  he  has  thereby  sustained. 

This  action  is  partly  superseded,  when  the  relation 
of  landlord  and  tenant  has  subsisted  between  the  par- 
ties to  the  ejectment,  by  the  provisions  of  the  stat.  1 
Geo.  IV.  c.  87,  (a)  which  enables  landlords  to  re- 
cover in  that  action,  the  mesne  profits  accruing  from 
the  day  of  the  determination  of  the  tenancy  (without 
reference  to  the  day  of  the  demise  in  the  declaration)  to 
the  day  of  the  trial,  or  some  preceding  day.  But  this 
mode  of  recovering  the  mesne  profits  is  optional  with 
the  landlord;  and  as  an  action  for  mesne  profits  must 
notwithstanding  be  resorted  to,  for  the  recovery  of  those 
profits  from  the  day  of  the  trial,  or  other  preceding 
day,  to  the  day  of  obtaining  possession,  and  as  it  is 
often  difficult  for  the  landlord  to  ascertain  what  injury 
he  has  actually  sustained,  by  the  holding  over  of  the 
tenant  (the  amount  of  the  damages  not  being  limited 
to  the  amount  of  the  rent)  until  he  obtains  actual  pos- 
session, this  provision  of  the  statute  is  in  practice  sel- 
dom resorted  to. 

It  has  been  said,  that  a  lessor  in  ejectment  may,  if 
he  please,  waive  the  trespass,  and  recover  the  mesne 
profits  in  an  action  for  use  and  occupation  ;  (6)  but 
this  election  must  be  limited  to  the  profits  accruing 
antecedently  to  the  time  of  the  demise  in  the  eject- 
ment; for  the  action  for  use  and  occupation  is  founded 
on  contract,  the  action  of  ejectment  upon  wrong,  and 


(a)  Ante,  321.  371.  584.      Doe.  <&  Cheney  v.  Batten, 

(6)  Goodtitle  w.    North,   Doug.      Cowp.  243. 


FOB    MESNE    PROFITS.  381 

they  are  therefore  wholly  inconsistent  with  each  other 
when  applied  to  the  same  period  of  time ;  since  in 
the  one  action  the  plaintiff  treats  the  defendant  as  a 
tenant,  and  in  the  other  as  a  trespasser,  (a)  When, 
however,  a  tenant  holds  over  after  the  expiration  of 
the  landlord's  notice  to  quit,  the  landlord,  after  a  re- 
covery in  ejectment,  may  waive  his  action  for  mesne 
profits,  and  maintain  debt  upon  the  4  Geo.  II.  c.  28, 
against  the  tenant,  for  double  the  yearly  value  of  the 
premises  during  the  time  the  tenant  so  holds  over : 
for  the  double  value  is  given  by  way  of  penalty, 
and  not  as  rent.  (61) 

The  action  for  mesne  profits  may  be  brought  pend- 
ing a  writ  of  error  in  ejectment,  and  the  plaintiff 
may  proceed  to  ascertain  his  damages,  and  to  sign  his 
judgment ;  but  the  Court  will  stay  execution  until  the 
writ  of  error  is  determined,  (c) 

The  action  is  bailable  or  not,  at  the  discretion 
of  the  Court,  or  Judge,  and  when  an  order  for  bail  is 
made,  the  recognizance  is  usually  taken  in  two 
years  value  of  the  premises,  but  this  is  also  dis- 
cretionary. (</) 

The  lessor  of  the  plaintiff  in  the  antecedent  action 

(a)  Birch  v.  Wright,  1  T.  R.  378.  the  better  opinion  that  he  is  not. 

(6)  Timmings  v.  Rowlison,  Burr.  Ante,  153. 

1603.     It  is  not  yet  settled  whe-  (c)    Harris  v.  Allen,  Cas.  Prac. 

ther,  when  the  ejectment  is  founded  C.  P.  46.  Donford  v.  Ellis,  12  Mod. 

upon  a  notice  to  quit  given  by  the  138. 

tenant,  the  landlord  is  entitled  to  (d)  Hunt  v.  Hudson,  Barn.  85. 

maintain  debt  upon  the  11  Geo.  II.  1  Sell.  Prac.  36. 
c.  19,  for  double  rent,  but  it  seerns 


382  OF    THE    ACTION 

of  ejectment,  is  of  course  the  person  concerned  in 
interest,  but  he  may  bring  his  action  for  mesne  profits 
either  in  his  own  name,  or  that  of  his  nominal 
lessee,  (a)  The  former,  however,  is  the  more  advan- 
tageous method ;  as  he  may  then,  upon  proper  proofs, 
recover  damages  for  the  rents  and  profits  received  by 
the  defendant,  anterior  to  the  time  of  the  demise  in 
the  ejectment,  which  cannot  be  done  in  an  action  at 
the  suit  of  the  nominal  plaintiff,  (£)  and  the  Courts 
will  not  stay  the  proceedings  until  security  be  given 
for  the  costs,  which  will  be  done  when  the  action  for 
niesne  profits  is  brought  in  the  name  of  such  nominal 
lessee,  (c) 

It  was  once  indeed  doubted  whether  this  action 
could  be  maintained  in  the  name  of  the  plaintiff  in  the 
ejectment,  after  a  judgment  by  default  against  the 
casual  ejector,  because,  being  a  possessory  action,  an 
entry  must  be  either  proved  or  admitted,  neither  of 
which,  it  was  argued,  could  in  such  case  be  done  ; 
but  it  is  now  settled,  that  there  is  no  distinction  be- 
tween a  judgment  in  ejectment  upon  a  verdict  and  one 
by  default,  the  right  of  the  claimant  being  in  the  one 
case  tried  and  determined,  and  in  the  other  con- 
fessed, (of) 

A  tenant  in  common,  who  has  recovered  in  eject- 

(a)  It  may  here  be  incidentally  his  name.    (Close's  case,  Skin.  247. 

observed,  that   when  the   ancient  Anon.  Salk.  260.) 

practice    is  resorted   to,  and    the  (6)  B.  N.  P.  87. 

plaintiff  in  the  ejectment  is  a  real  (c)  Say.  Costs.  126. 

person,  the  Court  will  not  permit  (rf)  Aislin  v.  Parkin,  Bu  rr.   655 

him  to  release  the  action  for  mesne  Jeffries  v.  Byson,  Stran.  960. 
profits,  should  the  lessor  bring  it  in 


FOR    MESNE    PROFITS.  383 

inent,  may  maintain  an  action  for  mesne  profits  against 
his  companion,  (a) 

A  joint  action  for  mesne  profits,  may  be  supported 
by  several  lessors  of  the  plaintiff  in  ejectment,  after  a 
recovery  therein,  although  there  were  only  separate 
demises  by  each,  (b) 

As  the  action  for  mesne  profits  is  an  action  of  tres- 
pass, it  cannot  be  maintained  against  executors  or  ad- 
ministrators, for  the  profits  accruing  during  the  life- 
time of  the  testator  or  intestate ;  nor  will  a  court  of 
equity  interfere  to  enforce  the  payment  of  them 
against  personal  representatives,  when  the  lessor  has 
been  deprived  of  his  legal  remedy  by  the  mere  acci- 
dent of  the  defendant's  death.  But  where  the  lessor 
was  delayed  from  recovering  in  ejectment  by  a  rule  of 
the  court  of  law,  and  by  an  injunction  at  the  instance 
of  the  defendant,  who  ultimately  failed  both  at  law 
and  in  equity,  the  Court  decreed  an  account  of  the 
mesne  profits  against  his  (the  defendant's)  exe- 
cutors, (c) 

It  is  also  doubtful  whether  the  action  can  be  main- 
tained against  a  tenant  for  the  holding  over  of  his 
undertenants,  for  it  should  be  brought  against  the 
person  in  actual  possession  and  trespassing,  (d)  But 
any  person  so  found  in  possession  after  a  recovery  in 
ejectment  is  liable  to  the  action ;  and  it  is  no  defence 

(a)  Goodtitle  v.  Tombs,  3  Wils.  (c)  Pulteney  v.  Warren,  6  Vez. 

118.  Cutting  v.  Derby,  Black.  1077.  J.  73. 

(6)  Chamier  &anothert;.Llingon,  (</)  Burne  v.  Richardson,  4 

5  M.  &  S.  G4  S.  C.  2  Chitty,  410.  Taunt.  720. 


384  OF    THE    ACTION 

to  say  that  he  was  upon  the  premises  as  the  agent  and 
under  the  licence  of  the  defendant  in  ejectment,  for 
no  man  can  license  another  to  do  an  illegal  act.  But 
the  measure  of  the  damages  in  such  case  will  not  be  the 
whole  raesne  profits  of  the  lands,  but  will  depend  upon 
the  time  such  person  has  had  them  in  his  occupation, 
together  with  the  other  circumstances  of  the  case,  (a) 

In  the  case  of  Keech  d.  Warne  v.  Hall,  (b]  where  it 
was  decided  that  a  mortgagee  might  recover  in  eject- 
ment without  a  previous  notice  to  quit,  against  a  tenant 
claiming  under  a  lease  from  the  mortgagor,  granted 
after  the  mortgage,  without  the  privity  of  the  mortga- 
gee, it  was  asked  by  the  counsel  for  the  defendant,  if 
such  mortgagee  might  also  maintain  an  action  against 
the  tenant  for  mesne  profits,  which  would  be  a  manifest 
hardship  and  injustice  to  the  tenant,  as  he  would  then 
pay  the  rent  twice.  Lord  Mansfield,  C.  J.  gave  no 
opinion  OB  that  point ;  but  said,  there  might  be  a  dis- 
tinction, for  the  mortgagor  might  be  considered  as 
receiving  the  rent  in  order  to  pay  the  interest,  by  an 
implied  authority  from  the  mortgagee,  until  he  de- 
termined his  will,  (c) 

The  declaration  in  the  action  for  mesne  profits 
must  expressly  state  the  different  parcels  of  land 
from  which  the  profits  arose,  or  the  defendant  may 
plead  the  common  bar.  It  should  also  state  the  time 
when  the  defendant  broke  and  entered  the  premises 
and  ejected  the  plaintiff,  the  length  of  time  during 

(a)    Girdlestone  v.  Porter,  K.  B.         (6)  Doug.  21.    Ante,  38. 
M.  T.  39  Geo.  III.  Wood.  L.  and  T.         (r)  Et  vide,  4  Ann.c.  16.  s.  10. 
511. 


FOR    MESNE    PROFITS.  385 

which  he  so  ejected  him,  and  the  value  of  the  mesne 
profits  of  which  he  deprived  him ;  and  a  declaration 
which  does  not  con  tain  these  statements  will  be  holden 
ill  on  special  demurrer;  but  the  defect  is  cured  by 
verdict,  or  after  judgment  by  default  and  writ  of  in- 
quiry executed,  by  the  operation  of  the  stat.  4  Ann. 
c.  16.  (a) 

In  the  statement  of  the  damages  in  the  declaration 
the  costs  of  the  ejectment  may  be  included,  whether 
the  judgment  be  against  the  casual  ejector,  or  against 
the  tenant  or  landlord;  and  when  the  judgment  is 
against  the  casual  ejector,  for  want  of  an  appearance, 
the  costs  are  invariably  included  in  the  statement  of 
the  damages,  though  it  is  more  prudent,  for  reasons 
already  assigned,  in  other  cases  to  omit  them;  (6) 
and  in  a  case  where  after  a  recovery  in  ejectment,  and 
before  an  action  for  mesne  profits,  the  defendant 
became  bankrupt,  and  the  lessor  inserted  the  taxed 
costs  of  the  ejectment  as  damages  in  his  action  for 
mesne  profits,  but  the  jury  did  not  include  them  in 
their  verdict  in  executing  a  writ  of  inquiry  therein, 
the  Court  refused  to  set  aside  the  inquisition  ;  because 
the  costs  being  a  liquidated  debt,  the  plaintiff  might 
have  proved  them  under  the  defendant's  commission 
of  bankruptcy,  and  as  he  had  chosen  to  take  the 
chance  of  recovering  in  an  oblique  way,  more  than  he 
could  have  recovered  in  a  direct  manner,  and  had  failed, 
the  Court  did  not  think  it  necessary  to  assist  him.  (c) 

(a)  Higgins  »>.  Highfield,  13  East,  et  vide  Utterson  v.  Vernon,  3  T.  R. 
407.  539,  47.     Ante,  336. 

(b)  Gulliver  v.  Drinkwater,  2  T.         (c)  Gulliver  v.  Drinkwater,  2  T. 
R.  261.  Doe  v.  Davies,  1  Esp.  358;  R.  261. 

C    C 


OF    THE    ACTION 


The  general  issue  is  not  guilty ;  and  if  the  plaintiff 
declare  against  the  defendant,  for  having  taken  the 
mesne  profits  for  a  longer  period  than  six  years  be- 
fore ^action  brought,  the  defendant  may  plead  the 
statute  of  limitations,  namely,  not  guilty  within  six 
years  before  the  commencement  of  the  suit,  and 
thereby  protect  himself  from  all  but  six  years,  (a) 


(a)  B.  N.  P.  88.  Subject  to  the 
defence  founded  on  the  statute  of 
j  imitations,  the  party  entitled  to  the 
possession  of  real  property,  and  of 
chattels  real,  may,  by  the  law  of 
England,  recover  the  mesne  profits 
from  the  time  his  title  accrued  ;  and 
at  law,  this  general  right  to  recover 
is  not  affected  by  any  equitable  cir- 
cumstances in  the  situation  of  the 
defendant ;  such  as  his  ignorance  of 
the  plaintiff's  right,  or  an  innocent 
mistake  in  point  of  law,  as  to  the 
construction  of  a  demise,  the  due 
execution  of  a  power,  and  the  like, 
where  the  defendant  may  have  ob- 
tained possession  in  the  fullest  con- 
fidence of  the  validity  of  his  title. 

In  equity  there  are  cases  in  which 
the  right  to  mesne  profits  is  restricted 
to  the  filing  of  the  bill ;  as  where 
the  defendant  has  possessed  in  en- 
tire and  justifiable  ignorance  of  an 
adverse  right,  or  where  the  plaintiff 
has  been  guilty  of  laches  in  prose- 
cuting his  claim.  See  Dormer  v. 
Fortescue,  3  Ashurst,  130,  and  the 
cases  referred  to  1  Maddock's 
Chancery,  90,  &c. 

According  to  the  civil  law,  and 
still  more  according  to  the  law  of 
some  of  the  countries  of  Europe, 


which  have  adopted  the  principles  of 
the  civil  law,  the  right  to  recover  the 
profits  of  real  property  enjoyed  with- 
out title,  and  to  which  the  title  of 
the  claimant  is  established,  has  been 
restricted  to  an  extent  which  will 
appear  extraordinary  to  an  English 
lawyer. 

By  the  civil  law  as  laid  down  in 
the  Senatus  Consultum  de  Htere- 
ditatis  Petitione ;  (D.  Lib.  5.  Tit.  iii. 
1.  20,  &c.)  bonae  fidei  possessors  are 
defined  to  be  those  "  qui  justas 
"  causas  habuissent  quare  bona  ad 
"  se  pertinere  existimassent ;"  and 
the  distinctions  as  to  liability  for 
intermediate  'profits  in  the  various 
cases  of  bona  fides  and  mala  fides  are 
laid  down  in  the  5th  book  of  the 
Digest  above  cited. 

Generally  in  the  case  of  bona  fide 
possession,  the  true  owner  was  en- 
titled to  mesne  profits  from  the  time 
of  litis  contestation  or  plea.  And  the 
time  from  which  the  bonce  fidei  pos- 
session was  liable,  even  when  held  to 
be  locupletior  foetus,  (as  then  having 
the  rents  and  profits  in  his  hands  in 
specie  and  unconsumed)  was  the 
period  of  final  judgment,  or,  "  rei 
judicata."  See  a  clear  and  concise 
view  of  the  Roman  law  upon  this 


FOR    MESNE    PROFITS. 


387 


Neither  bankruptcy,  (a)  nor  a  discharge  under  the  In- 
solvent Debtor's  Act,  (b]  can  be  pleaded  in  bar  to  this 
action  ;  and  it  has  been  held  that  the  stat.  6  Geo.  IV. 
c.  16.  s.  57,  which  directs,  that  all  persons  who  shall 


subject  in  Bynkershock  (Opera  1,262.) 
Lib.  8,  c.  12.  Observationum  Juris 
Romani. 

The  law  of  Scotland  has  gone  be- 
yond the  civil  law  in  favour  of  the 
bon&Jidei  possessor ;  and  the  case  of 
bona  fides  has  been  very  liberally 
construed.  Many  questions  involv- 
ing this  doctrine  arose  on  the  leases 
granted  by  the  late  Duke  of  Queens- 
bury,  who  being  tenant  in  tail  had 
granted  a  great  number  of  leases  at 
inadequate  rents,  taking  very  profit- 
able grassums  or  fines,  a  thing  which 
had  been  held  lawful  by  a  series  of 
decisions  of  the  Scotch  Courts,  but 
finally,  the  law  was  settled  otherwise 
by  the  House  of  Lords,  and  all  the 
leases  granted  on  such  terms  by  the 
Duke  were  set  aside.  (1  Bligh, 
339.) 

The  next  heir  of  entail  in  preju- 
dice of  whom  these  leases  had  been 
granted  brought  actions  for  what 
the  law  of  Scotland  terms  "vio- 
lent profits;"  but  it  was  held  in  these 
cases  that  the  bona  fides  of  the  te- 
nants, the  lessees,  continued  till  the 
final  judgment  in  the  House  of 
Lords  referred  to. 

A  very  strong  case  is  now  pending 
in  the  House  of  Lords.  The  late 
Earl  of  Peterborough  being  entitled 
as  heir  of  entail  to  a  considerable 
estate  in  Scotland,  gran  ted  in  1795 
leases  for  a  long  term  at  rents 


fully  adequate  at  the  time  to  the 
highest  previously  received,  but 
taking  a  sum  in  hand  as  grassum  or 
fine,  the  next  heir  of  entail  insti- 
tuted an  action  to  reduce  the 
leases,  and  for  "  violent  profits,"  and 
they  followed  the  decision  in  the 
Queensbury  case.  The  action  had 
been  commenced  in  1814.  The 
Court  of  Session  first  determined 
that  the  bonte  fidei  possession  of  the 
lessee  ceased  on  the  12th  of  July, 
1819,  the  date  of  the  judgment  in 
the  Queensbury  cases;  but  subse- 
quently fixed  the  period  to  be  the 
9th  of  March,  1819,  the  date  of  the 
judgment  of  the  Court  of  Session, 
reducing  and  setting  aside  the  lease. 
The  defendant  had  appealed  from 
the  latter  judgment  which  was  af- 
firmed in  the  House  of  Lords,  (5th 
July,  1822,)  and  he  contended  that 
the  period  when  bonce  fidei  posses- 
sion ceased  was  that  of  affirmance  in 
the  particular  case.  The  point  now 
under  appeal  is, — at  which  of  the 
periods  1819,  or  1822,  the  defend- 
ant became  liable  for  violent  or 
mesne  profits,  the  title  of  the  plai  ntiff' 
having  accrued  in  1814. 

As  to  the  general  principles  of  the 
law  of  Scotland  on  this  subject,  see 
Erskine,  B.  2.  Tit.  1.  s.  25.  Stair. 
B.  2.Tit.  l.s.  23. 

(a)  Goodtitle  v.  North.  Doug.  584. 

(b)  Lloyd  v.  Peell,  3  B.  &  A.  407. 

cc2 


388  OP    THE    ACTION 

have  given  credit  upon  good  and  valuable  considera- 
tion bond  fide,  for  any  money  whatsoever,  which  is 
not  due  at  the  time  of  the  bankruptcy,  shall  be  ad- 
mitted to  prove  such  debts,  &c.  has  been  holden  not 
to  extend  to  damages  recoverable  in  an  action  for 
mesiie  profits.  («) 

As  also  this  action  is  for  a  tortious  occupation,  the 
defendant  cannot  pay  money  into  court.  (6) 

Where  the  plaintiff  proceeds  only  for  the  recovery 
of  the  mesne  profits,  accruing  subsequently  to  the  day 
of  the  demise  in  the  declaration,  he  need  not  prove 
his  title  to  the  premises.  The  judgment  in  ejectment 
is  conclusive  evidence  of  his  right  from  that  period ; 
and  it  is  immaterial  whether  the  judgment  is  founded 
on  a  verdict,  or  has  been  obtained  by  default  against 
the  casual  ejector ;  and  whether  the  action  is  brought 
in  the  name  of  the  real  claimant,  or  the  nominal  plain- 
tiff in  the  ejectment,  (c)  It  was  formerly  indeed 
holden  that  if  the  action  were  brought  in  the  name  of 
such  claimant,  or  after  judgment  by  default  against 
the  casual  ejector,  the  judgment  would  not  operate 
by  way  of  estoppel ;  but  that  the  defendant  was  at  li- 
berty to  controvert  the  plaintifPs  title ;  because  the 
plaintiff  in  the  action  for  mesne  profits,  in  the  one 
case,  and  the  defendant  in  the  other,  were  not  parties 
to  the  record  in  the  previous  ejectment,  (d)  But  it  is 
now  settled  that  there  is  no  solid  distinction  between 


(«)  Moggridge  v.  Davis,  1  Whit.  B.  N.  P.  87. 

16.  (</)  t  Lill.  Prac.  Reg.  676.    Jef- 

(6)  Holdfast  v.  Morris,  2  Wils.  115.  fries  v.  Dyson,  Stran.  960. 
(c)  Aislin  v.  Parkin,.  Burr.  688. 


FOR    MESNE    PROFITS.  389 

the  two  judgments,  the  right  being  tried  and  deter- 
mined in  the  one  case,  and  confessed  in  the  other ; 
and  that  the  claimant  and  tenant  in  possession  are  ju- 
dicially to  be  considered  the  only  parties  to  the  suit. 

When,  therefore,  the  plaintiff  seeks  to  recover  such 
profits  only  as  have  accrued  subsequently  to  such  de- 
mise, no  other  evidence  of  his  title  is,  generally  speak- 
ing, required,  than  examined  copies  of  the  judgment  in 
ejectment,  of  the  writ  of  possession,  and  of  the  sheriff's 
return  thereon ;  (a)  and  if  the  plaintiff  has  been  let 
into  possession  of  the  premises  by  the  defendant,  an 
examined  copy  of  the  judgment  in  ejectment  only 
will  be  sufficient.  (6)  It  has  indeed  been  doubted, 
whether  evidence  of  the  writ  of  possession  and 
sheriff's  return  is  ever  necessary,  except  upon  judg- 
ment by  default  against  the  casual  ejector,  but  it  is, 
notwithstanding,  prudent  to  be  prepared  with  it  in 
all  cases,  unless  the  plaintiff  has  been  let  into  pos- 
session by  the  defendant,  (c) 

The  judgment  in  ejectment,  however,  is  not  evi- 

(a)  Astlin  v.  Parkin,  B.  N.  P.  87.  ejector,   no  rule   having  been  en- 

(6)Calvertu.  Horsefall,4  Esp.  67.  tered    into,    the   lessor   shall    not 

(c)  Vide  Thorp  v.  Fry,  B.  N.  P.  maintain  trespass  without  an  ac- 

87,  et   S.  N.  P.    693.   (n.   50),   et  tual  entry,  and  therefore  ought  to 

Aislin  v.  Parkin,  Burr.  665.    The  prove  the  writ  of  possession  exe- 

reason  assigned  for  this  distinction  cuted.      But  this  reasoning  is  not 

is,  that  where  the  judgment  is  had  satisfactory  ;    for  if  the  tenant  be 

against  the  tenant  in  possession,  the  concluded  by  the  judgment  in  the 

defendant,    by  entering    into    the  ejectment  from  controverting   the 

consent  rule,  is  estopped  both  as  to  plaintiff's  title,  it   should  seem  he 

the  lessor  and  lessee,  so  that  either  is  also  concluded  from  controvert- 

may  maintain  trespass,  without  au  ing  his  possession,  for  possession  is 

actual  entry,   but'  that  where  the  part  of  his  title, 
judgment  is  had  against  the  casual 


390  OF    THE    ACTION 

deuce  against  a  previous  occupier;  (a)  nor  is  a  judg- 
ment against  the  wife  evidence  in  an  action  for  mesne 
profits  against  the  husband  and  wife,  for  the  wife's 
confession  of  a  trespass  committed  by  her,  cannot  be 
given  in  evidence  to  affect  the  husband,  in  an  action 
in  which  he  is  liable  for  the  damages  and  costs ;  (6) 
and  if  the  action  for  mesne  profits  be  brought  against 
the  landlord,  after  a  judgment  by  default  against 
the  casual  ejector,  such  judgment  will  not  be  evi- 
dence against  him,  without  proof  that  he  received 
due  notice  of  the  service  of  the  ejectment  upon  the 
tenant  in  possession,  (c)  But  where  a  landlord  sub- 
sequently to  the  judgment  promised  to  pay  the 
rent  and  costs  to  the  plaintiff,  Lord  Ellenborough, 
C.  J.  was  of  opinion,  that  such  promise,  there  being 
no  proof  that  he  had  received  notice  of  the  ejectment, 
amounted  to  an  admission,  that  the  plaintiff  was 
entitled  to  the  possession  of  the  premises,  and  that 
he  was  a  trespasser,  (c) 

The  plaintiff  must  also  prove  the  length  of  time 
that  the  defendant  (or  his  tenants  if  he  be  the  land- 
lord) have  been  in  possession  of  the  premises,  for 
the  judgment  in  ejectment  affords  no  evidence  of 
possession,  and  he  can  only  recover  damages  for 
the  time  he  proves  the  defendant  to  be  in  actual 
occupation,  or  receipt  of  the  rents  and  profits.  The 
production  of  the  consent  rule  proves  possession,  only 
from  the  time  of  the  service  of  the  declaration,  (d) 

(a)  B.  N.  P.  87.  (d}  Dodwell  v.  Gibbs,  2  C.  &  P. 

(6)  Denn  v.  White,  7  T.R.  112.      615. 
(c)  Hunter  v.  Britts,  3  Camp.  455. 


FOR    MESNE    PROFITS.  391 

He  must  also,  of  course,  prove  the  amount  of  his 
damages  ;  and  as  the  action  for  mesne  profits  is  an 
action  of  trespass  vi  et  armis,  the  jury  are  not  con- 
fined in  their  verdict  to  the  mere  rent  of  the  premises, 
although  the  action  is  said  to  be  brought  to  recover 
the  rents  and  profits  of  the  estate,  but  may  give  such 
extra  damages  as  they  may  think  the  particular  cir- 
cumstances of  the  case  may  demand,  (a)  He  must  also 
prove  the  amount  of  his  costs  where  they  are  stated 
in  the  declaration  as  part  of  his  damages,  and  if  the 
ejectment  has  been  defended,  his  claim  is  limited  to 
the  amount  of  the  taxed  costs  only.  (6)  Yet  a  plain- 
tiff in  this  action  has  been  allowed  to  recover,  by  way 
of  damages,  the  full  costs  incurred  by  him  in  a  court 
of  error  in  reversing  a  judgment  in  ejectment  ob- 
tained by  the  defendant,  although  they  were  costs 
which  the  court  of  error  had  no  power  to  allow,  (c) 

The  plaintiff  will  also  be  entitled  to  give  evidence 
of  any  injury  done  to  the  premises,  in  consequence 
of  the  misconduct  of  the  defendant,  provided  such 
fact  be  especially  alleged  in  the  declaration. 

When  the  plaintiff  seeks  to  recover  the  mesne  profits 
accruing  antecedent  to  the  day  of  the  demise  in  the 
declaration,  it  follows  from  what  has  been  already 
said,  that  he  must  produce  the  regular  proof  of  his 
title  to  the  premises.  He  must  also,  it  appears,  in  such 
case  prove  an  entry  upon  the  lands,  though  some 
doubt  seems  to  exist  as  to  what  proof  of  entry  will  be 

(a)  Goodtitle   v.  Tombs,  3  Wils.  471.  Doe  v.  Davis,  1  Esp.  358. 
118.  121.  (c)  Nowell  ».  Roake,  7  B.  &C. 

(6)  Brooke  u.  Bridges,  7  B.  Moore,  404. 


392  OF    THE    ACTION 

sufficient.     By  some  it  has  been  said,  that  the  plaintiff' 
is  entitled  to  recover  the  mesne  profits  only  from  the 
time  he  can  prove  himself  to  have  been  in  possession ; 
and  that,  therefore,  if  a  man  make  his  will  and  die, 
the  devisee  will  not  be  entitled  to  the  profits  until  he 
has  made  an  actual  entry,  or  in  other  words  until  the 
day  of  the  demise  in  the  ejectment ;  for  that  none  can 
have   an  action  for  mesne  profits  unless  in  case  of 
actual  entry  and  possession.     Others  have  holden, 
that  when  once  an  entry~has  been  made,  it  will  have 
relation  to  the  time  the  title  accrued,  so  as  to  entitle 
the  claimant  to  recover  the  inesne  profits  from  that 
time  ;  and  they  say  that  if  the  law  were  not  so,   the 
Courts  would  never  have  suffered  plaintiffs  in  eject- 
ments to  lay  their  demises  back  in  the  manner  they 
now  do,  and  by  that  means  entitle  themselves  to  re- 
cover profits,  to  which  they  would  not  otherwise  be 
entitled,  (a)      The  latter  seems  the  better  opinion ; 
but  these  antecedent  profits  are  now  seldom  the  object 
of  litigation,  from  the  practice  of  laying  the  demise 
and  ouster  immediately  after  the  time  when  the  lessor's 
title  accrues.  (&)      It  should  however  be  observed, 
that  when  a  fine  with  proclamations  has  been  levied, 
an  entry  to  avoid  it  will  not,  in  this  action,  entitle  the 
plaintiff  to  the  profits  between  the  time  of  the  fine 
levied,  and  the  time  of  the  entry,  although  they  pro- 
bably may  be  recovered  in  a  court  of  equity,  (c) 

If  the  plaintiff  in  an  action  for  mesne  profits  re- 
cover less  than  forty  shillings,  and  the  judge  do  not 

(a)Metcalfv.  Harvey,  1  Ves.  248,          (c)  Dormer  v.  Fortescue,  3  Alk. 
9.— B.  N.  P.  87.  124.  Compere  v.  Hicks,  7  T.  R.  727. 

(ft)  Ante,  212. 


FOR    MESNE    PROFITS.  393 

certify  that  the  title  came  in  question,  the  plaintiff 
is  entitled  to  no  more  costs  than  damages;  and  this 
is  the  case  whether  the  action  is  brought  in  the  name 
of  the  lessor  of  the  plaintiff  in  the  ejectment,  or  in 
that  of  his  nominal  lessee,  (a) 

If  in  an  ejectment  there  be  a  verdict  for  the  plain- 
tiff, and  the  defendant  bring  a  writ  of  error,  and  enter 
into  a  recognizance  to  pay  costs  in  case  of  nonsuit, 
&c.  pursuant  to  stat.  16  &  17  Car.  II.  c.  8,  and  he 
be  nonsuited,  &c.,  the  defendant  in  error  needs  not 
bring  a  scire  facias  or  debt  on  the  recognizance,  but 
may  sue  out  an  elegit,  or  writ' of  inquiry,  to  recover 
the  mesne  profits  since  the  first  judgment  in  eject- 
ment, (b) 

(a)  Doe  v.  Davis,  6  T.  R.  593.       (6)  Short  v.  Heath,  2  Cromp.  Prac. 
S.  C.  1  Esp.  358.  225. 


APPENDIX. 


No.  1. 

o  Notice  to 

LR»  quitbythe 

I  hereby  give  you  notice  to  quit  and  deliver  up,  on  the  landlord, 
day  of  next,  the  possession  of  the  messuage  or  f^6^" 

dwelling  house,  (or  "rooms  and  apartments,"  or  "farm  lands  to  year. 
and  premises,")  with  the  appurtenances,  which  you  now  hold 
of  me,  situate  in  the  parish  of  in  the  county 

of 

Dated  the  day  of  18  Yours,  &c. 

A.B. 

To  Mr.  C.  D.  (the  tenant  in  possession :)  or  (if  it  be 
doubtful  who  is  tenant,)  To  Mr.  C.  D.  or  whom  else 
it  may  concern. 

No.  2. 

SlR.  The  like, 

I  do  hereby,  as  the  agent  for  and  on  behalf  of  your  landlord  fo^the^"1 
A.B.  of       give  you  notice  to  quit  and  deliver  up,  on  (&c.)  (as  landlord. 
in  No.  1.)  which  you  now  hold  of  the  said  A.B.  situate,  (8cc.) 
Dated,  (&c.)  Yours,  &c.  E.  F. 

Agent  for  the  said  A.  B. 
To  Mr.  C.  D.  (&c.) 

No.  3. 

SlR.  The  like, 

Tii-  n  HT  bytheland- 

I  hereby  give  you  notice,  &c.  (as  in  No.  1.  to  "  county  lord,  where 

of          "  )  provided  your  tenancy  originally  commenced  at  that  ^cement 
time  of  the  year  ;  or  otherwise,  that  you  quit  and  deliver  up  of  the  te- 
the  possession  of  the  said  messuage,  (&c.)  at  the  end  of  the  doubtful. 


396  APPENDIX. 

year  of  your  tenancy,  which  shall  expire  next  after  the  end 
of  half  a  year  from  the  time  of  your  being  served  with  this 
notice. 

Dated,  (&c.)  Yours,  &c. 

To  Mr.  C.  D.  (&c.)  A.  B. 

No.  4. 

The  like,  SlR 

by  a  tenant  .  . 

from  year       I  hereby  give  you  notice  of  my  intention  to  quit,  and  that 


-       sna^  on  ^a^  °^  next,  quit  and  deliver  up  the 

tiontoquit.  possession  of  the  messuage,  (See.)  which  I  now  hold  of  you, 
situate  (&c.) 

Dated,  (&c.)  Yours,  &c. 

To  Mr.  A.  B.  C.  D. 

No.  5. 

Letter  of        Know  all  men  by  these  presents,  that  I,  A.  B.  of,  (&c.)  have 
to  enter      made,  ordained,  constituted  and  appointed,  and  by  these  pre- 

andseai  a  sents  do  make,  ordain,  constitute  and  appoint  C.  D.  of,  (&c.) 

lease  on  the 

premises,    my  true  and  lawful  attorney,  for  me,  and  in  my  name,  to 

enter  into  and  take  possession  of  a  certain  messuage,  (&c.) 
late  in  the  tenure  and  occupation  of  G.  H.,  situate  (&c.)  but 
now  untenanted  ;  and  after  the  said  C.  D.  hath  taken  posses- 
sion thereof,  for  me,  and  in  my  name,  and  as  my  act  and  deed, 
to  sign,  seal,  and  execute  a  lease  of  the  said  premises  with  the 
appurtenances,  unto  E.  F.  of,  (&,c.)  to  hold  the  same  to  him  the 
saidE.F.  his  executors,  administrators,  and  assigns,  from  the 
of  last  past,  before  the  date  hereof,  for  the 

term  of  seven  years,  at  the  yearly  rent  of  a  peppercorn,  if  law- 
fully demanded  ;    subject  to  a  proviso,  for  making  void  the 
same,  on  tendering  the  sum  of  sixpence  to  the  said  E.  F.  his 
executors  or  administrators.     In  witness  (Sec.) 
Sealed  and  delivered  (&c.) 

No.  6. 

Affidavit  of      I.  K.  of,  (&c.)  gentleman,  uaaketh  oath  and  saith,  that  he 
the  samef    was  present  and  did  see  A.  B.  of,  (&c.)   named  in  the  letter  of 

attorney  hereunto  annexed,  duly  sign,  seal   and  deliver  the 

said  letter  of  attorney. 

Sworn,  (8cc.)  I.  K. 


APPENDIX.  31)7 


No.  7. 

This  indenture  made  the         day  of  (&c.)        between  A.  B.  Lease. 
of,  (&c.)  of  the  one  part,  and  E.  F.  of,  (&c.)  of  the  other  part, 
witnesseth,  that  the  said  A.  B.  for  and  in  consideration  of  the 
sura  of  five  shillings  of  lawful  money  of  Great  Britain,  to  him 
in  hand  paid  by  the  said  E.  F.  at  or  before  the  sealing  and 
delivery  of  these  presents,  the  receipt  whereof  the  said  A.  B. 
doth  hereby  acknowledge,  hath  demised  granted  and  to  farm 
let  unto  the  said  E.  F.  his  executors  and  administrators,  all 
that  messuage,  (Sec.)  situate,  (&c.)  late  in  the  tenure  and  oc- 
cupation of  G.  H.  but  now  untenanted ;  to  have  and  to  hold 
the  same  unto  the  said  E.  F.  his  executors  and  administra- 
tors, from  the       day  of          last  past,  before  the  date  hereof, 
for  and  during  and  unto  the  full  end  and  term  of  seven  years 
from  thence  next  ensuing,  and  fully  to  be  complete  and  ended; 
yielding  and  paying  therefore  yearly  and  every  year,  during 
the  said  term,  unto  the  said  A.  B.  or  his  assigns,  the  rent  of 
one  peppercorn,  if  lawfully  demanded  at  the  feast  of 
Provided  always,  and  these  presents  are  on  this  condition, 
that  if  the  said  A.  B.  or  his  assigns  shall  at  any  time  or  times 
hereafter,  tender  or  cause  to  be  tendered  unto  the  said  E.  F. 
his  executors  and  administrators,  the  sum  of  sixpence,  that 
then  and  in  such  case,  and  from  thenceforth,  this  present  in- 
denture, and  every  thing  herein  contained,  shall  cease,  deter- 
mine, and  be  absolutely  void,  any  thing  herein  contained  to 
the  contrary  thereof  in  any  wise  notwithstanding.     In  wit- 
ness whereof,  the  parties  hereto  have  interchangeably  set  their 
hand  and  seals,  the  day  and  year  first  above  written. 
Sealed  and  delivered,  as  the  act  and  deed  of  the"*\ 
above  named  A.  B.  by  C.  D.  of           by  virtue  of/ 
a  letter  of  attorney  to  him  for  that  purpose,  made  >    ' 
by  the  said  A.  B.  bearing  date  (&c.)  being  first  V 
duly  stamped  in  the  presence  of  I.  K.J 

No.  8. 

Take  notice,  that  unless  you  appear  in  his  Majesty's  Court  Notice  to 
of  King's  Bench  at  Westminster,  within  the  first  four  days  aPPear' &c- 
(or.  if  in  the  country,  within  the  first  eight  days)  of  next 


398  APPENDIX. 

term,  at  the  suit  of  the  above  named  plaintiff  E.  F.  and  plead 
to  this  declaration  in  ejectment,  judgment  will  be  thereon 
entered  against  you  by  default.  Yours,  &c. 

To  Mr.  G.  H.  I.  K.  plaintiffs  attorney. 


No.  9. 
Affidavits  In  the  King's  Bench. 

move  for 

indKmBDt        TU*.—   f E>  R  on   the  demise   of  A-  B-   plaintiff,   and 


o.P defendant. 

I.  K.  of        gentleman,  maketh  oath  and  saith,  that  on  the 
day  of  last,  he  this  deponent  did  see  C.  D.  in  the 

letter  of  attorney  hereunto  annexed  named,  for  and  in  the 
name  of  A.  B.  the  lessor  of  the  plaintiff,  enter  upon  and  take 
possession  of  the  messuage  in  the  lease  hereto  also  annexed 
mentioned,  by  entering  on  the  threshold  of  the  outer  door 
thereof;  and  putting  his  finger  into  the  keyhole  of  the  said 
door,  the  said  messuage  being  then  locked  up  and  uninhabit- 
ed, so  that  no  other  entry  thereon  could  be  made,  nor  any 
possession  thereof  taken,  without  force ;  and  this  deponent 
further  saith,  that  he  did,  on  the  same  day,  see  the  above 
named  C.  D.  after  such  entry  made,  and  whilst  he  stood  on 
the  threshold  of  the  said  door,  duly  sign  and  seal  the  lease 
hereunto  annexed,  in  the  name  of  the  said  A.  B.  and  as  his 
act  and  deed  deliver  the  same  unto  the  said  E.  F.  the  plaintiff 
above  named  ;  and  that  after  the  said  lease  was  so  executed, 
this  deponent  did  see  the  said  E.  F.  take  possession  of  the 
said  messuage,  by  virtue  of  the  said  lease,  by  entering  upon 
the  threshold  of  the  said  outer  door,  and  putting  his  finger 
into  the  key-hole  of  the  said  door,  the  said  messuage  being 
then  locked  up  and  uninhabited,  so  that  no  other  entry  could 
be  made  thereon,  save  as  aforesaid ;  and  that  immediately 
afterwards,  the  said  G.  H.  the  defendant,  came  and  removed 
the  said  E.  F.  from  the  said  door,  and  put  his  foot  on  the 
threshold  thereof ;  whereupon  this  deponent  did,  on  the  day 
and  year  aforesaid,  deliver  to  the  said  defendant  G.  H.  who 
still  continued  upon  the  said  threshold,  a  true  copy  of  the 
declaration  of  ejectment,  and  notice  thereunder  written  hereto 
annexed. 

Sworn,  (&c.) 


APPENDIX. 


No.  10. 


399 


William  the  Fourth  (&c.)  to  the  sheriff  of  greeting:  Original 

If  John   Doe  shall    give  you    security    of   prosecuting  his 
claim,  then  put  by  gages  and  safe  pledges  Richard  Roe,  late  of 
yeoman,  that  he  be  before  us,  on  where- 

soever we  shall  then  be  in  England,  (or  in  C.  P.  "  that  he  be 
before  our  justices  at  Westminster,  on  ")  to  show 

wherefore,  with  force  and  arms,  he  entered  into  mes- 

suages, (See.)  with  the  appurtenances,  in  which  A.  B. 

hath  demised  to  the  said  John  Doe,  for  a  term  which  is  not 
yet  expired,  and  ejected  him  from  his  said  farm ;  and  other 
wrongs  to  the  said  John  Doe  there  did,  to  the  great  damage 
of  the  said  John  Doe,  and  against  our  peace  :  And  have  you 
there  the  names  of  the  pledges,  and  this  writ.  Witness  our- 
self  at  Westminster,  the  day  of  in  the 

year  of  our  reign. 

No.  11. 

T»I   j  4.    S  JOHN    DEN.  Sheriff'sre- 

Pledges  to  prosecuted  ""  sr' 

(.RICHARD  FEN. 

The  within-named  RichardC  JOHN  SMITH. 
Roe  is  attached  by  pledges),  WILLIAM  STILES. 

No.  12. 

In  the  King's  Bench,  (or  Common  Pleas.) 
term,  in  the  year  of  the  reign  of  King  William  the  Deciara- 

Fourth,         (to  wit)  Richard  Roe  late  of  yeoman,  was  0,°",^  On 

tached  to  answer  John  Doe  of  a  plea,  wherefore  the  said  a  single  de- 
Richard  Roe,  with  force  and  arms,  &,c.  entered  into  ™0'tTc'e  to'1 
messuages,             barns,             stables,                     outhouses,  aPPear 

'thereto. 

yards,  gardens,  orchards,  acres  of 

arable  land,  acres  of  meadow  land,  and  acres  of 

pasture  land,  with  the  appurtenances,  situate,  &c.  which  A.  B. 
had  demised  to  the  said  John  Doe,  for  a  term  which  is  not 
yet  expired,  and  ejected  him  from  his  said  farm ;  and  other 
wrongs  to  the  said  John  Doe  there  did,  to  the  great  damage 
of  the  said  John  Doe,  and  against  the  peace  of  our  lord  the 
now  king,  (&c.)  And  thereupon  the  said  John  Doe,  by 


APPENDIX. 

his  attorney  complains  ;  that  whereas  the  said  A.  B. 
on  (&c.)  at  (&c.)  had  demised  the  said  tenements  with  the  appur- 
tenances, to  the  said  John  Doe,  to  have  and  to  hold  the  same 
to  the  said  John  Doe  and  his  assigns,  from  the  day  of 

then  last  past,  for  and  during  and  unto  the  full  end 
and  term  of  years  from  thence  next  ensuing,  and 

fully  to  be  complete  and  ended :    By  virtue  of  which  said 
demise,  the  said  John  Doe  entered  into  the  said  tenements 
with  the  appurtenances,  and  became  and  was  thereof  pos- 
sessed, for  the  said  term  so  to  him  thereof  granted  :    And  the 
said  John  Doe  being  so  thereof  possessed,  the  said  Richard 
Roe  afterwards,  to  wit,  on  (&c.)  with  force  and  arms,  (&c.) 
entered   into   the   said   tenements   with   the   appurtenances, 
which  the  said  A.  B.  had  demised  to  the  said  John  Doe,  in 
manner  and  for  the  term  aforesaid,  which  is  not  yet  expired, 
and  ejected  the  said  John  Doe  from  his  said  farm  ;  and  other 
-     wrongs  to  the  said  John  Doe  then  and  there  did,  to  the  great 
damage  of  the  said  John  Doe,  and  against  the  peace  of  our 
said  lord  the  now  king ;  wherefore  the  said  John  Doe  saith, 
that  he  is  injured,  and  hath  sustained  damage  to  the  value  of 
£  and  therefore  he  brings  his  suit,  &c. 

No.  13. 

Notice  to  Mr.  C.  D. 

appear.  j  am  mforme(j  tnat  you  are  in  possession  of,  or  claim  title 

to  the  premises  in  this  declaration  of  ejectment  mentioned,  or 
some  part  thereof;  and  I,  being  sued  in  this  action  as  a 
casual  ejector  only,  and  having  no  claim  or  title  to  the  same, 
do  advise  you  to  appear  in  next  term,  (or,  in  Lon- 

don or  Middlesex,  "  on  the  first  day  of  next  term") 

in  his  Majesty's  Court  of  King's  Bench,  wheresoever  his  said 
Majesty  shall  then  be  in  England,  (or,  in  the  Common  Pleas, 
"  in  his  Majesty's  Court  of  Common  Bench  at  West- 
minster,") by  some  attorney  of  that  court;  and  then  and 
there,  by  rule  of  the  same  court,  to  cause  yourself  to  be  made 
defendant  in  my  stead;  otherwisel  shall  suffer  judgment  there- 
in to  be  entered  against  me  by  default,  and  you  will  be  turned 
out  of  possession 

Yours,  &c. 

Richard  Roe. 


APPENDIX. 


40; 


No.  14. 

In  the  King's  Bench,  (or  Common  Pleas). 

term  (&c.) 

on  a  double 

(to  wit,)  Richard  Roe,  late  of  yeoman,  was  attached  to  demise, 

answer  John  Doe,  of  a  plea  wherefore  the  said  Richard  Roe, 
with  force  and  arms,  &c.  entered  into  messuages  (&c.) 

with  the  appurtenances,  situate  &c.  which  A.  B.  had  demised 
to  the  said  John  Doe,  for  a  term  which  is  not  yet  expired ; 
And  also  wherefore  the  said  Richard  Roe,  with  force  and 
arms,  &c.  entered  into  other  messuages,  (&c)  with 

the  appurtenances,  situate  &c.  which  E.  F.  had  demised  to 
the  said  John  Doe  for  a  term  which  is  not  yet  expired,  and 
ejected  him  from  his  said  several  farms,  and  other  wrongs, 
(&c.)  And  thereupon,  (8tc.)  that  whereas  the  said  A.  B.  on 
&c.  at  8cc.  had  demised  the  said  tenements  first  above  men- 
tioned with  the  appurtenances,  to  the  said  John  Doe  ;  to  have 
and  to  hold  the  same  to  the  said  John  Doe  and  his  assigns, 
From  the  day  of  then  last  past,  for  and  during  and 

unto  the  full  end  and  term  of  years  from  thence  next  en- 

suing, and  fully  to  be  complete  and  ended.*  And  also  that 
whereas  the  said  E.  F.  on  &c.  at  &c.  had  demised  the  said 
tenements  secondly  above-mentioned  with  the  appurtenances, 
to  the  said  John  Doe,  to  have  and  to  hold  the  same  to  the 
said  John  Doe  and  his  assigns,  from  the  said  day  of 
then  last  past,  for  and  during  and  unto  the  full  end  and  term 
of  years  from  thence  next  ensuing,  and  fully  to  be 

complete  and  ended  :  By  virtue  of  which  said  several  demises, 
the  said  John  Doe  entered  into  the  said  several  tenements  first 
and  secondly  above  mentioned  with  the  appurtenances,  and 
became  and  was  thereof  possessed,  for  the  said  several  terms 
so  to  him  thereof  respectively  granted  :  And  the  said  John 
Doe  being  so  thereof  possessed,  the  said  Richard  Roe  after- 
wards, to  wit,  on  &,c.  with  force  and  arms,  (&c.)  entered  into 
the  said  several  tenements  first  and  secondly  above  mentioned 
with  the  appurtenances,  which  the  said  A.  B.  and  E.  F.  had 
respectively  demised  to  the  said  John  Doe,  in  manner  and  for 
the  several  terms  aforesaid,  which  are  not  yet  expired,  and 
ejected  the  said  John  Doe  from  his  said  several  farms ;  and 

D   D 


402  APPENDIX. 

other  wrongs ;  &c.  (as  in  the  preceding  precedent  with  the 
like  notice  to  appear.) 

No.  15. 
The  like,        (As  in  last  precedent  to  this  mark.*)    By  virtue  of  which  said 

with  two       ,        .          i-iriTx  i  •  i  •  i  r> 

ousters.  demise,  the  said  John  Doe  entered  into  the  said  tenements  first 
above  mentioned  with  the  appurtenances,  and  became  and  was 
thereof  possessed  for  the  said  term  so  to  him  thereof  granted, 
and  the  said  John  Doe  being  so  thereof  possessed,  the  said  Ri- 
chard Roe  afterwards,  (to  wit,)  on  &c.  with  force  and  arms,  &c. 
entered  into  the  said  tenements  first  above  mentioned  with  the 
appurtenances,  which  the  said  A.  B.  had  demised  to  the  said 
John  Doe,  in  manner  and  for  the  term  aforesaid,  which  is  not 
yet  expired,  and  ejected  him  the  said  John  Doe  from  his  said 
farm  :  And  also,  that  whereas  the  said  E.  F.  on  &c.  at  &c. 
had  demised  the  said  tenements  secondly  above  mentioned, 
with  the  appurtenances,  to  the  said  John  Doe ;  to  have  and 
to  hold  the  same  to  the  said  John  Doe  and  his  assigns,  from 
the  said  day  of  then  last  past,  for  and  during  and 

unto  the  full  end  and  term  of  years  from  thence  next  en- 

suing, and  fully  to  be  complete  and  ended  ;  By  virtue  of  which 
said  last  mentioned  demise,  the  said  John  Doe  entered  into 
the  said  tenements  secondly  above  mentioned  with  the  appur- 
tenances, and  became  and  was  thereof  possessed  for  the  said 
last  mentioned  term  s6  to  him  thereof  granted  :  And  the  said 
John  Doe  being  so  thereof  possessed,  the  said  Richard  Roe 
afterwards,  to  wit,  on  &c.  with  force  and  arms,  &c.  entered  into 
the  said  tenements  secondly  above  mentioned  with  the  appur- 
tenances, which  the  said  E.  F.  had  demised  to  the  said  John 
Doe,  in  manner  and  for  the  term  last  aforesaid,  which  is  not 
yet  expired,  and  ejected  the  said  John  Doe  from  his  said  last 
mentioned  farm,  and  other  wrongs,  &c.  (as  in  No.  14,  with  the 
like  notice  to  appear.) 

No.  lb\ 

8ervice"of°f      ^n  ^m»'s  Bencn»  (Common  Pleas,  or  Exchequer  Pleas.) 
declaration  T>  (  f  John  Doe   on  the  demise  of  A.  B.  plaintiff,  and 

SeS?"  "  *  Richard  Roe' defendant. 

I-  K.  of  gentleman,  maketh  oath,  that  he  this  de- 

ponent did  on  &c.  *  personally  serve  C.  D.  tenant  in  posses- 
sion of  the  premises  in  the  declaration  of  ejectment  hereunto 


APPENDIX.  403 

annexed  mentioned,  or  (if  he  be  not  tenant  of  the  whole)  some 
part  thereof,  with  a  true  copy  of  the  said  declaration,  and  of 
the  notice  thereunder  written,  hereunto  annexed,  and  this 
deponent  at  the  same  time  read  over  the  said  notice  to  the 
said  C.  D.  and  explained  to  him  the  intent  and  meaning 
of  such  service,^  (or  generally  thus :  and  this  deponent,  at 
the  same  time,  acquainted  the  same  C.  D.  of  the  intent  and 
meaning  of  the  said  declaration  and  notice.) 

Sworn,  &c.  I.  K. 

No.  17. 

(As  in  last  precedent  to  this  mark*)  personally  serve  C.  D.  T^e  like 
(&,c.)  tenants  in  possession,  (8tc.)  (as  in  the  last)  with  the  said  there  are 
declaration,  and  the  notice  thereunto  written,  by  delivering  a 
true  copy  of  the  said  declaration  and  notice  to  each  of  them 
the  said  C.  D.  &c.  (and  if  the  notice  was  not  directed  to  all 
the  tenants,  say  "  except  that  the  said  notice  was  directed 
to  each  of  them  the  said  C.  D.  &c.  separately;")  and  this 
deponent  at  the  same  time  read  over  the  said  notice  to  each 
of  them  the  said  C.  D.  (&c.)  and  explained  to  them  re- 
spectively the  intent  and  meaning  of  such  service  ;  (or  gene- 
rally, that  "  this  deponent,  at  the  same  time,  acquainted  each 
of  them  the  said  C.  D.  &c.  of  the  intent  and  meaning  of  the 
said  declaration  and  noticed) 

Sworn,  &c.  I.  K. 

No.  18. 

(As  in  No.  16.  to  *)  personally  serve  C.  D.  tenant  in  pos-  Theiike, 
session  of  part  of  the  premises  in  the  declaration  of  ejectment  declaration 
hereunto  annexed  mentioned,  with  a  true  copy  &c.  (as  in  No.  was  served 
16  to  f) :  And  this  deponent  further  saith,  that  he  did,  on  the  nant,  and 
same  day,  also  serve  G.  H.  tenant  in  possession  of  other  part the  ^lfe  of 
(or  residue)  of  the  premises  in  the  said  declaration  mentioned, 
with  another  true  copy  of  the  said  declaration  and  notice 
thereunder  written,  by  delivering  the  same  to,  and  leaving  it 
with  M.  H.  the  wife  of  the  said  G.  H.  at  the  dwelling-house 
of  the  said  G.  H.  being  a  parcel  of  the  premises  in  the  said 
declaration  mentioned,  and  this  deponent  at  the  same  time 
read  over  the  notice  thereunder  written  to  the  said  M.  H.  and 
explained  to  her  the  intent  and  meaning  of  such  service. 

(Sworn,  &c.)  I.  K. 

DD2 


404 


APPENDIX. 


The  like, 


23,  where 
the  pre- 
mises are 
untenant- 
ed. 


T»  <. 
Between 


No.  19. 

In  the  King's  Bench  (&c.) 

f  John  Doe  on  the  demise  of  A.  B.  plaintiff,  and 

? 

t  Richard  Roe,      ......       defendant. 

A,  B.  of  lessor  of  the   plaintiff  in  this  case,  and 

I.  K.  both  of  gentleman,  severally  make  oath  and 

say;  and  first,  this  deponent  I.  K.  for  himself  saith,  that  he 
did  on  &c.  affix  a  copy  of  the  declaration  in  ejectment  hereto 
annexed,  and  the  notice  thereunder  written  upon  the  door  of 
the  messuage  in  the  said  declaration  mentioned,  (or,  in  case 
the  ejectment  is  not  for  the  recovery  of  a  messuage,  "  upon 
being  a  notoriousxplace  of  the  lands,  tenements  or  here- 
ditaments, comprised  in  the  said  declaration  in  ejectment,") 
there  being  no  tenant  then  in  actual  possession  thereof.  And 
this  deponent  A.  B.  for  himself  saith,  that  before  such  copy  of 
the  said  declaration  in  ejectment  was  so  fixed  as  aforesaid,  there 
was  due  to  him  this  deponent,  as  landlord  of  such  messuage,  (or 
"lands,  tenement,  or  hereditaments,")  with  the  appurtenances, 
from  C.  D.  the  tenant  thereof,  the  sum  of  £.  for  half  a 

year's  rent,  upon  and  by  virtue  of  a  certain  indenture  of  lease, 
bearing  date  &c.  and  made  between  &c.  and  that  no  sufficient 
distress  was  then  to  be  found  upon  the  said  messuage,  (or, 
"lands,  tenements,  or  hereditaments,'1)  with  the  appurtenances, 
countervailing  the  arrears  of  rent  then  due  to  this  deponent  ; 
And  this  deponent  further  saith,  that  at  the  time  of  affixing 
the  copy  of  the  said  declaration  in  ejectment  as  aforesaid,  he 
had  power  to  re-enter'  the  said  messuage,  (or  lands,  tenements, 
and  hereditaments,")  with  the  appurtenances,  by  virtue  of 
the  said  lease,  for  the  non-payment  of  the  rent  so  in  arrear  as 
aforesaid. 

A  B 

Sworn,  (&c.)  '•    ' 


next  after 


No.  20. 
in  the 


year  of  &c. 


Rule  for 

judgment,    Doe  on 

for  the 

•whole  pre-       v.  Roe J  of  (or,  if  the  premises  are  un- 

tenanted,  "  unless  some  person  claiming  title  to")  the  pre- 
mises in  question  shall  appear  and  plead  to  issue,  on 


of  A.  B.  ^Unless  the  tenant  in  possession 
j 


APPENDIX.  405 

next  after  let  judgment  be  entered  for  the  plaintiff, 

against  the  now  defendant  Roe  by  default. 
Upon  the  motion  of  Mr. 

By  the  Court. 

No.  21. 

Doe  on  the  demise  of  A.  B.  ^Unless   C.  D.  tenant    in    pos-  The  like, 
v.  Roe     ......   ^session  of  part  of  the  premises  for  part' 

in  question,  shall  appear  and  pleud  to  issue,  on  next 

after  let  judgment  be  entered  for  the  plaintiff,  against 

the  now  defendant  Roe,  by  default  :  But  execution  shall  issue 
for  such  part  of  the  premises  only  as  is  in  his  possession. 
Udon  the  motion  of  Mr. 

By  the  Court. 

No.  22. 

Doe  on  the  demise  of  A.  B.  1  Unless  C.  D.  (&c.)  tenants  in  The  like, 
v.  Roe     ......    j  possession  of  part  of  the  pre-  Jh££  ££ 

niises  in  question,  and  unless  or  some  other  person  raises  are 

claiming  title  to  such  part  of  the  said  premises  as  are  unte-  anTpaV 
nanted,  shall  appear  and  plead  to  issue,  on  next  after  untenant- 

let  judgment  be  entered  for  the  plaintiff  against  the 
now  defendant  Roe,  by  default  :  but  execution  shall  issue  for 
such  part  of  the  premises  only  as  is  in  the  possession  of  the 
said  tenants,  and  such  other  parts  as  are  untenanted. 

By  the  Court. 

No.  23. 

As  yet  of  term,  in  the  year,  &c.  Judgment 

Witness,  Charles  Lord  Tenterden.  plainti 


-  (to  wit,)  John  Doe,  on  the  demise  of  A.B.  puts  in  his  »'(«('««  *J 

v  r  original  m 

place  I.  K.  his  attorney,  against  Richard  Roe,   in  a  plea  of  K.  B.  with 
trespass   and  ejectment  of  farm.  ^1"'"" 

-  (to  wit)  The  said  Richard  Roe  in  person,  at  the 
suit  of  the  said  John  Doe  in  the  plea  aforesaid. 

-  (to  wit)  Richard  Roe  was  attached  to  answer 
John  Doe,  &c.  (copy  the  declaration  to  the  end,  omitting  the 
notice,  and  proceed  on  a  new  line  as  follows  ;) 

And  the  said  R.  R.  in  his  proper  person,  comes  and  defends 
the  force  and  injury,  when,  &c.  and  says  nothing  in  bar  or 


406 


APPENDIX. 


preclusion  of  the  said  action  of  the  said  J.  D.  whereby  the 
said  J.  D.  remains  therein  undefended  against  the  said  R.  R. : 
Therefore  it  is  considered,  that  the  said  J.  D.  recover  against 
the  said  R.  R.  his  said  term  yet  to  come  of  and  in  the  tene- 
ments aforesaid,  with  the  appurtenances ;  and  also  his  damages 
sustained  by  reason  of  the  trespass  and  ejectment  aforesaid  : — 
And  hereupon  the  said  J.  D.  freely  here  in  court  remits  to  the 
said  R.  R.  all  such  damages,  costs  and  charges,  as  might  or 
ought  to  be  adjudged  to  him  the  said  J.  D.  by  reason  of  the 
trespass  and  ejectment  as  aforesaid  :  therefore,  let  the  said 
R.  R.  be  acquitted  of  those  damages,  costs  and  charges,  8tc. : 
— And  hereupon  the  said  J.  D.  prays  the  writ  of  the  said  lord 
the  king,  to  be  directed  to  the  sheriff  of  the  county  aforesaid, 
to  cause  him  to  have  possession  of  his  said  term  yet  to  come 
of,  and  in  the  tenements  aforesaid,  with  the  appurtenances  ; 
and  it  is  granted  to  him,  returnable  before  the  said  lord  the 
king,  on wheresoever,  &c. 


No.  24. 


-on  (or  next  after) in  the 

-(to  wit)  Doe  on  the  demise  of  A. 


Consent  of  — 

attornies, 

for  the  te-  ~~ 

nant  to  be  against  Roe,  for  messuages  (&c.)  in 

admitted      ,^  •  i.       r  •       Au  -j 

to  defend    the  parish   ot  in   the   said  county : 

&c.in  K.B.  (or>  if  there  be  several  demises,  say)  "  Doe, 

on  the  demise  of  A.  B.  for         messuages, 

(&c.)   in  the  parish  of  in  the  said 


year,  &c. 

It  is  ordered  by 
the  consent of  the 
attornies  for  both 
parties,  that  C. 
D.  be  made  de- 
fendant in  the 
stead  of  the  now 
defendant  Roe, 
and  do  forthwith 
appear  at  the  suit 
of  the  plaintiff; 
and  (if  the  eject- 


county,  and  also  on  the  demise  of  E.  F. 
for  other  messuages  (&c.)  in  the 

parish  of  in  the  said  county,  against 

Roe  ;"  and  if  the  tenant  appear  for  part 
only,  add,  "  being  part  of  the  premises 
mentioned  in  the  declaration."  > 

ment  be  by  bill)  file  common  bail,  and  receive  a  declaration  in 
an  action  of  trespass  and  ejectment,  for  the  premises  in  ques- 
tion, which  said  premises  he  the  said  C.  D.  does  hereby  admit 
to  be  or  consist  of,  (Here  describe  the  premises  for  which  it  is 
intended  to  defend)  for  which  he  intends  as  (tenant  or  landlord, 
as  the  case  may  be)  to  defend  this  action  of  trespass  and 
ejectment.  And  it  is  further  ordered  by  the  like  consent, 
that  the  said  C.  D.  do  forthwith  plead  not  guilty  thereto ; 


APPENDIX.  407 

and  upon  the  trial  of  the  issue,*  confess  lease  entry  and 
ouster,  and  that  he  was,  at  the  time  of  the  service  of  the  said 
declaration,  in  possession  of  the  premises  hereinbefore  men- 
tioned and  specified,  and  insist  upon  the  title  only,  otherwise 
let  judgment  be  entered  for  the  plaintiff  against  the  now 
defendant  Richard  Roe,  by  default,  and  if  upon  trial  of  the 
said  issue,  the  said  C.  D.  shall  not  confess  lease,  entry,  and 
ouster,  and  such  possession  as  aforesaid,  whereby  the  plaintiff 
shall  not  be  able  further  to  prosecute  his  (writ  or  bill)  against 
the  said  C.  D.  then  no  costs  shall  be  allowed  for  not  further 
prosecuting  the  same,  but  the  said  C.  D.  shall  pay  costs  to 
the  plaintiff,  in  that  case  to  be  taxed  by  the  master.  And  it 
is  further  ordered,  that  if  upon  the  trial  of  the  said  issue  a 
verdict  shall  be  given  for  the  said  C.  D.,  or  it  shall  happen 
that  the  plaintiff  shall  not  further  prosecute  his  the  said  (writ 
or  bill)  for  any  otbex  cause  than  for  not  f  confessing  lease, 
entry,  ouster,  and  such  possession  as  aforesaid,  then  the  lessor 
of  the  plaintiff  shall  pay  to  the  said  C.  D.  costs  in  that  case  to 
be  adjudged.  I.  K.  attorney  for  plaintiff, 

L.  M.  attorney  for  defendant. 

No.  25. 

In  the  Common  Pleas. 

term  in  the year,  &c.  Consent 

the day  of  *»{?in 


(to  wit)   Doe,   on  the  demise  of")    It  is  ordered  by 

A.  B.  against  Roe.  J  consent  of  I.  K. 

attorney  for  the  plaintiff,  and  L.  M.  attorney  for  C.  D.  who 
claims  title  to  the  tenements  in  question, 

which  premises  he,  the  said  C.  D.  hereby  admits  to  be  or  consist 
of  (here  describe  thepremisesfor  which  it  is  intended  to  defend)  for 
which  he  intends  as  (tenant  or  landlord}  to  defend  this  action 
of  trespass  and  ejectment,  that  he  may  be  admitted  defendant, 
and  that  the  said  defendant  shall  immediately  appear  by  his 
attorney,  who  shall  receive  a  declaration,  and  plead  thereto 
the  general  issue,  this  term  ;  and  at  the  trial  thereupon  to  be 
had,  the  said  defendant  shall  appear  in  his  own  proper  person, 
or  by  counsel  or  attorney,  and  confess  lease,  entry  and  ouster, 
and  that  he  was,  at  the  time  of  the  service  of  the  declaration, 
in  possession  of  the  premises  hereinbefore  mentioned  and  spe- 


408  APPENDIX. 

cified,  and  insist  upon  the  title  only,  otherwise  let  judgment 
be  entered  for  the  plaintiff  against  the  now  defendant  by  de- 
fault. And  by  the  like  consent,  it  is  ordered,  that  if  upon 
trial  of  the  said  issue,  the  said  C.  D.  shall  not  confess  lease 
entry  and  ouster,  and  such  possession  as  aforesaid,  whereby 
the  plaintiff  shall  not  be  able  further  to  prosecute  this  action 
against  the  said  C.  D.,  then  no  costs  shall  be  allowed  for  not 
further  prosecuting  the  same,  but  the  said  C.  D.  shall  pay 
costs  to  the  plaintiff's  lessor  in  that  case,  to  be  taxed  by  the 
prothonotary.  And  it  is  further  ordered  by  the  like  consent, 
that  if  upon  the  trial  of  the  said  issue,  a  verdict  be  found  for 
the  said  C.  D.  or  it  shall  happen  that  the  plaintiff  shall  not 
further  prosecute  his  said  action  for  any  other  cause  than  for 
not  confessing  lease  entry  and  ouster,  and  such  possession  as 
aforesaid,  then  the  lessor  of  the  plaintiff  shall  pay  to  the  said 
C.  D.  costs  in  that  case  to  be  adjudged. 

By  the  Court. 

No.  26. 

Affidavit  In  the  King's  Bench. 

of  ruieP°to      C.  D.  of  &c.  maketh  oath  and  saith,  that  no  actual  ouster 

authorize    of  the  lessor  of  the  plaintiff  has  been  committed  by  this  depo- 

the  tenant  ,        ,  .      .  ..     ,    ,.          .     ,  . 

to  confess  nent,  and  that  (as  he  this  deponent  verily  believes)  this  eject- 

1ee*se  and     ment  may  involve  a  question  between  tenants  in  common,  or 
in  K.  B.     joint-tenants. 

Sworn,  (&c.)  C.  D. 

No.  27. 

Rule  in      Doe,  on  the  demise  of  A.  B.  v.  )       Upon   reading    the    rule 

K.  B.  to 

authorize        ^oe ^    made  yesterday,  and  upon 

toVnfesf  hearing  Mr- &c-  for  the  lessor  of  the  plaintiff,  and  Mr. 

lease  and    &c.  for  the  tenant ;  it  is  ordered,  that  the  defendant 

entry  only.  enter  into  a  rule  for  confessing  lease,  entry,  and  possession, 
and  also  for  confessing  ouster  of  the  nominal  plaintiff,  in  case 
an  actual  ouster  of  the  plaintiff's  lessor  by  the  defendant  shall 
be  proved  at  the  trial,  but  not  otherwise. 

By  the  Court 


APPENDIX. 


4W) 


No.  28. 
Doe  ^       It  is  ordered,  &c.  (as  in  No.  24  to  *)  confess  lease, 

f,  .          ,,  Kuletnere* 

v.    >  entry,  and  that  he  was  at  the  time  of  the  service  of  on. 

Roe.J  the  declaration,  in  possession  of  the  premises  here- 
inbefore mentioned  and  specified,  and  also  ouster  of  the 
nominal  plaintiff,  in  case  an  actual  ouster  of  the  plaintiff's 
lessor  by  the  defendant  shall  be  proved  at  the  trial,  but  not 
otherwise,  and  insist  upon  the  title  and  such  actual  ouster 
only;  otherwise  let  judgment  be  entered  for  the  plaintiff  against 
the  now  defendant  Roe,  by  default.  And  if  upon  the  trial 
of  the  said  issue,  the  said  C.  D.  shall  not  confess  lease  and 
entry,  and  also  ouster  upon  the  condition  aforesaid,  whereby 
&c.  (as  in  No.  24.  to  f)  confessing  lease,  entry,  and  such  pos- 
session as  aforesaid,  and  also  ouster  subject  to  the  conditions 
aforesaid,  then  the  lessor  of  the  plaintiff  shall  pay  to  the  said 
C.  D.  costs  in  that  case  to  be  adjudged. 

By  the  Court. 

No.  29. 

Doe,  on  the  demise  of  A.  B.  v.  \     It  is  ordered  that  E.  F.  Rule  in 

Roe )    landlord  of  the  tenant  in  admitting 

possession  of  the  premises  in  question  in  this  cause,  shall  be  j^d ^de- 
joined  and  made  defendant  with  the  said  tenant,  if  he  shall  fend,  &c. 
appear :  And  the  said  E.  F.  desiring,  if  the  said  tenant  shall 
not  appear,  that  he  may  appear  by  himself,  and  consenting 
that  in  such  case  he  will  enter  into  the  common  rule  to  confess 
lease,  entry,  and  ouster,  in  such  manner  as  the  said  tenant 
ought,  in  case  he  had  appeared  ;  (or  if  the  rule  be  special,  to 
confess  lease  and  entry  only,  say  "  to  confess  lease  and  entry 
only,  without  ouster,  unless  an  actual  ouster  of  the  lessor  of 
the  plaintiff,  by  the  said  C.  D.  or  those  claiming  under  him, 
be  proved  at  the  trial,")  leave  is  given  to  the  said  E.  F.  pur- 
suant to  the  late  act  of  Parliament,  if  the  said  tenant  shall 
not  appear,  to  appear  by  himself,  and  upon  his  entering  into 
such  common  rule,  to  become  defendant  in  the  stead  of  the 
casual  ejector,  and  to  defend  his  title  to  the  said  premises 
without  the  said  tenant :  the  plaintiff  nevertheless  is  at  liberty 
to  sign  judgment  against  the  casual  ejector  ,•  but  execution 
thereon  is  stayed,  until  the  Court  shall  further  order.  Upon 
the  motion  of  Mr. By  the  Court. 


410 


APPENDIX. 


No.  30. 


giiUy.fDOt  C>  D 1  term(&c.)     And  the  said 

ats.  >  C.  D.  by  L.   M.  his  attorney, 

Doe,  on  the  demise  of  A.  B.  J  comes  and  defends  the  force  and 
injury,  when,  &c.  and  says  that  he  is  not  guilty  of  the  sup- 
posed trespass  and  ejectment,  (or  if  several  ousters  are  laid  in 
the  declaration, "  of  the  supposed  trespasses  and  ejectments,") 
above  laid  to  his  charge,  in  manner  and  form  as  the  said  John 
Doe  hath  above  thereof  complained  against  him  ;  And  of  this 
he  the  said  C.  D.  puts  himself  upon  the  country,  &c. 

No.  31. 


C.  D -J        And  the  said by 

demesne.    at8i  \.  his  attorney  comes  and  de- 

Doe,  on  the  demise  of  A.  B.J  fends  the  force  and  injury, 
when,  Sac.  and  says,  that  all  the  tenements  and  premises  in 
the  declaration  aforesaid  specified,  in  which  the  trespass  and 
ejectment  are  above  supposed  to  have  been  done,  are  held  of 

as  of  his  manor  of in  the  county  of and 

which  said  manor  is,  and  from  time  whereof  the  memory  of 
man  is  not  to  the  contrary  was,  of  ancient  demesne  of  the 
crown  of  the  king  of  England,  and  now  of  our  lord  the  king ; 
and  that  the  aforesaid  tenements  and  premises  are  and  for  all 
the  time  aforesaid  were  pleaded  and  pleadable  in  the  court  of  the 
same  manor  by  patent  writ  of  our  lord  the  king  of  right  close 
only  and  not  elsewhere  or  otherwise ;  and  this  he  is  ready  to 
verify  as  the  court  shall  think  proper ;  Wherefore  he  prays 
judgment  if  the  court  of  our  said  lord  the  king,  now  here  will 
take  cognizance  of  the  said  plea,  &c. 

No.  32. 

Affidavit 

l°  *cco™~       C.  D.  the  tenant  in  possession  of  the  premises  in  the  decla- 

of  ancient   ration  of  ejectment  in  this  cause  above  mentioned,  maketh 

ine'    oath,  and  saith,  that  the  said  premises  in  the  said  declaration 

in  this  cause  above  mentioned,  with  the  appurtenances-,  are 

held  of as  of  his  manor  of  in  the  county  of 

and  which  said  manor  is  holden  in  ancient  demesne  : 

And  this  deponent  further  saith,  and  there  is  a  court  of  ancient 
demesne  held  within  the  said  manor  of and  that  there 


APPENDIX. 


411 


are  suitors  in  the  same  court,  in  which  said  court  and  before 
which  suitors  the  said  A.  B.  the  lessor  of  the  plaintiff  above 
named  might  have  proceeded  in  the  said  ejectment  ;  and  this 
deponent  further  saith,  that  to  the  best  of  this  deponent's 
knowledge  and  belief,  the  said  A.  B.  the  said  lessor  of  the 
plaintiff  is  seized  in  his  demesne  as  of  fee  of  and  in  the  said 
premises  with  the  appurtenances  in  the  said  declaration  of 
ejectment  mentioned. 

Sworn,  8cc.  C.  D. 

No.  33. 

Afterwards,  that  is  to  say,  on  Sec.  at  &c.  before,  (&c.)  comes  Postea  for 
the  within-named  John  Doe,  by  his  attorney  within  mentioned  defeudant 

'  .    J  J  on  a  non- 

and  the  within-named  C.  D.  although  solemnly   required,  suit,fomot 
comes  not,  but  makes  default;  therefore,  let  the  jurors  of  the  J^/^nt^ 
jury  whereof  mention  is  within  made,  be  taken  against  him  and  ouster. 
by  his  default;  and  the  jurors  of  that  jury  being  summoned 
also  to  come,  and  to  speak  the  truth  of  the  matters  within  con- 
tained, being  chosen,  tried  and  sworn,  the  said  C.  D.  although 
solemnly  called  to  appear  by  himself  or  his  counselor  attorney, 
to  confess  lease,  entry  and  ouster,  and  possession  of  the  pre- 
mises hereinbefore  mentioned,  doth  not  come,  by  himself  or 
his  counsel  or  attorney,  nor  doth  he  confess  lease,  entry,  ouster, 
and  possession,  but  therein  makes  default  ;  wherefore  the  said 
John  Doe  doth  not  further  prosecute  his  writ  (or  bill)  against 
the  said  C.  t). 
Therefore,  (&c.) 

No.  34. 

(To  the  end  of  the  issue,  and  then  as  follows  :)  At  which  Judgment 
day  before  our  lord  the  king  at  Westminster  comes  (or  in  the  ^nthf  as 
Common  Pleas  or  Exchequer  "  At  which  day  comes  here/')  *°  part  of 
the  parties  aforesaid,  by  their  attornies  aforesaid  ;  and  here- 


upon  the  said  C.  D.  as  to  -  parcel  of  the  tenements  in  £or  the  de~ 
the  said  declaration  mentioned,  relinquishing  his  said  plea  by  on  a  nolle 
him  above  pleaded,  says  that  he  cannot  deny  the  action  of  the  j£°t*>9the 
said  John  Doe,  nor  but  that  he  the  said  C.  D.  is  guilty  of  the  residue. 
trespass  and  ejectment  above  laid  to  his  charge,  in  manner 
and  form  as  the  said  John  Doe  hath  above  thereof  complained 
against  him  :  And  upon  this  the  said  John  Doe  says,  that  he 
will  not  further  prosecute  his  suit  against  the  said  C.  D.  for 


412  APPENDIX, 

the  trespass  and  ejectment  in  the  residue  of  the  tenements 
aforesaid  ;  and  he  prays  judgment,  and  his  term  yet  to  come 
of  and  in  the  said  -  with  the  appurtenances,  parcel,  &c. 
together  with  his  damages,  costs  and  charges  by  him  in  this 
behalf  sustained  :  Therefore  it  is  considered,  that  the  said 
John  Doe  do  recover  against  the  said  C.  D.  his  said  term  yet 
to  come  of  and  in  the  said  -  with  the  appurtenances, 
parcel,  (8cc.)  and  also  £  -  for  his  said  damages,  costs 
and  charges,  by  the  court  of  the  said  lord  the  king  now  here 
adjudged  to  the  said  John  Doe,  and  with  his  assent,  and  also 
with  the  assent  of  the  said  C.  D.  :  And  let  the  said  C.  D.  be 
acquitted  of  the  said  trespass  and  ejectment  in  the  residue  of 
the  tenements  aforesaid,  and  go  thereof  without  day,  (&c.)  : 
And  the  said  John  Doe  prays  the  writ  of  our  said  lord  the  king, 
to  be  directed  to  the  sheriff  of  -  aforesaid,  to  cause  him 
to  have  possession  of  his  said  term  yet  to  come  of  and  in  the  said 
-  with  the  appurtenances,  parcel,  f&c.)  and  it  is  granted 
to  him,  returnable  before  our  said  lord  the  king  on  > 

wheresoever,  (&c.)  (or  in  the  Common  Pleas  or  Exchequer, 
"  returnable  here  on  -  &c.") 

No.  35. 


Rule  for     Doe,  on  the  demise  of  A.  B.  u.~)      Upon  reading  a  rule  made 

execution  V 

I 


execuion  •        i  • 

against  the      Koe    ............     I    m  this  cause  on 


re  an<^  ^'  ^  '  t^ierem  named,  having  made  himself  defendant  in 
the  land-    the  stead  of  the  casual  ejector,  pursuant  to  the  said  rule,  and 
been  made  tne  Postea  iQ  the  said  cause  being  produced  and  read,  and  a 
defendant,  rule  made  in  the  same  cause  this  day  ;  it  is  ordered  that  the 
at  the  trial,  said  E.  F.  upon  notice  of  this  rule  to  be  given  to  his  attorney, 
(&c.)  show  cause,  why  the  plaintiff  should  not  have  leave  to 
sue   out  execution,  upon   the  judgment  signed  against   the 
casual  ejector  pursuant  to  the  first  mentioned  rule.     Upon 
the  motion  of  Mr. 

By  the  Court. 

No.  36. 
Haberefa.      William   the   Fourth,    (&c.)      To   the  sheriff  of  -- 

cias  posses- 

greeting  :  Whereas  John  Doe  lately  in  our  court  before  us  at 
Westminster,  by  our  writ,  (or  if  by  bill,  say  "  by  bill  without 
our  writ,"")  and  by  the  judgment  of  the  same  court  recovered 


APPENDIX.  413- 

against  C.  D.  (or  if  the  judgment  be  by  default  "  against 
Richard  Roe,")  his  term  J  then  and  yet  to  come  of  and  in 
dwelling-houses,  (&c.)  (as  in  the  declaration  in  eject- 
ment) with  the  appurtenances,  situate  (&,c.)  which  A.  B.  on 
(&c.)  had  demised  to  the  said  J.  D.  to  hold  the  same  to  the 
said  J.  D.  and  his  assigns,  from  (&c.)  for  and  during  and 

until  the  full  end  and  term  of years  from  thence  next 

ensuing,  and  fully  to  be  complete  and  ended,  *  by  virtue  of 
which  said  demise,  the  said  J.  D.  entered  into  the  said  tene- 
ments with  the  appurtenances,  and  was  possessed  thereof,  until 
the  said  C.  D.  afterwards  (to  wit,)  on  (&c.)  with  force  and 
arms,  (&c.)  entered  into  the  said  tenements  with  the  ap- 
purtenances, which  the  said  A.  B.  had  demised  to  the  said 
J.  D.  in  manner,  and  for  the  term  aforesaid,  which  was  not 
then,  nor  is  yet  expired,  and  ejected  the  said  J.  D.  from  his 
said  farm  tt^" ;  whereof  the  said  C.  D.  is  convicted,  as  appears 
to  us  of  record ;  therefore  we  command  you,  that  without 
delay  you  cause  the  said  J.  D.  to  have  the  possession  of  his 
said  term  yet  to  come  of  and  in  the  tenements  aforesaid,  with 
the  appurtenances :  and  in  what  manner  you  shall  have 
executed  this  our  writ,  make  appear  to  us,  on  where- 

soever we  shall  then  be  in  England,  (or  by  bill,  "  to  us  at 
Westminster,  on  next  after  ,"f)  and  have  there 

(or  by  bill,  "  have  there  then,"")  this  writ. 

Witness,  Charles  Lord  Tenterden,  (&c.) 

No.  36.  (a) 

(As  in  preceding  precedent  to  *  ;)  and  also  his  term,  then,  Theiike.on 
and  yet  to  come,  of  and  in  other  dwelling-houses  *  ^ 

(8cc.)  with  the  appurtenances,  which  E.  F.  on,  (&,c.)  had  de- 
mised to  the  said  J.  D.,  to  hold  the  same  to  the  said  J.  D.  and 
his  assigns,  from,  &c.  for,  and  during,  and  unto,  the  full  end 
and  term  of  years  from  thence  next  ensuing,  and 

fully  to  be  complete  and  ended  ;  by  virtue  of  which  said  several 
demises,  the  said  J.  D.  entered  into  the  said  several  tenements 
with  the  appurtenances,  and  was  possessed  thereof,  until  the 
said  C.  D.  afterwards,  to  wit,  on,  (&c.)  with  force,  and  arms, 
(&c.)  entered  into  the  said  several  tenements  with  the  ap- 
purtenances, which  the  said  A.  B.  and  E.  F.  had  respectively 
demised  to  the  said  John  Doe,  in  manner,  and  for  the  several 


414  APPENDIX. 

terms  aforesaid,  which  were  not  then,  nor  are  yet  expired, 
and  ejected  the  said  J.  D.  from  his  said  several  farms ;  whereof 
the  said  C,  D.  is  convicted,  (adding  in  K.  B.  "  as  appears  to 
us  of  record :")  therefore  we  command  you,  that  without 
delay,  you  cause  the  said  J.  D.  to  have  the  possession  of  his 
said  several  terms,  yet  to  come  of,  and  in,  the  said  several 
tenements  with  the  appurtenances :  and  in  what  manner, 
&c.  (as  in  preceding  precedent  to  the  end.) 

No.  37. 

The  like,        William  the  Fourth,   (&c.)   to  the   Sheriff  of 

judge  has    greeting :  Whereas  at  the  assizes  holden  at  in  and  for 

certified     the  county  of  on  the  day  of  last, 

under  st3.t 

i  Wm.iv.  before  Sir  Nicholas  Conyngham  Tindal,  Knt.,  L.  C.  J.,  (&c.) 
c- 70-  a  cause  came  on  to  be  tried,  in  which  John  Doe  was  the 
plaintiff,  and  C.  D.  the  defendant,  and  in  which  cause  the 
said  John  Doe  sought  to  recover  against  the  said  C.  D.  his 
term,  (as  in  precedent  No.  36,  from  J  to  K?*.)  And  whereas 
at  the  trial  of  the  said  cause,  the  jury  found  a  verdict  for  the 
said  John  Doe,  and  the  said  Sir  Nicholas  Conyngham  Tindal 
hath  duly  certified  on  the  back  of  the  said  record  in  the  said 
action,  according  to  the  form  of  the  statute  in  that  case  made 
and  provided,  his  opinion  that  a  writ  of  possession  ought  to 
issue  immediately  :  therefore,  &c.  (As  in  precedent  No.  36 
to  the  end.) 

No.  38. 

The  like,  (As  in  No,  36,  to  f.)  We  also  command  you,  that  of  the 
facias  for  goods  and  chattels  of  the  said  C.  D.  in  your  bailiwick,  you 
costs,  by  cause  to  be  made  £.  which  the  said  J.  D.  lately  in  our 

original  in  .          * 

K.  B.  said  Court  before  us,  at  Westminster,  aforesaid,  recovered 
against  the  said  C.  D.  for  his  damages,  which  he  had  sus- 
tained, as  well  on  occasion  of  the  trespass  and  ejectment 
aforesaid,  as  for  his  costs  and  charges  by  him,  about  his  suit, 
in  that  behalf  expended  ;  whereof  the  said  C.  D.  is  convicted, 
as  appears  to  us  of  record  :  and  have  you  the  monies  before 
us,  on  the  return  day  aforesaid,  wheresoever,  (&c.)  to  be  ren- 
dered to  the  said  John  Doe,  for  his  damages  aforesaid, 
and  have  there  this  writ.  Witness,  Charles  Lord  Tenterden. 


APPENDIX.  415 


No.  39. 

(As  in  No.  36.  to  t-)  We  also  command  you,  that  you  take  The  like, 
the  said  C.  D.  if  he  shall  be  found  in  your  bailiwick,  and  him  ^adfatitfa- 
safely  keep,  so  that  you  may  have  his  body  before  us,  on  the  c^ntium 
return  day  aforesaid,  wheresoever,  (&c.)  to  satisfy  the  said  by  original 
J.  D.         £.  which  in  our  said   Court  before  us,  at  West-inK'B' 
minster  aforesaid,  were  adjudged  to  the  said  J.  D.,  for  his 
damages,  which,  &c.  (as  in  preceding  precedent  to  the  end.) 

No.  40. 
(Copy  the  last  precedent  to  the  end,  omitting  the  words  The  like, 

,.  ._         ,.  .,,.  x          ,,       and  also  for 

'  and  have  there  this  writ,    and  then  as  follows  :)  and  also 


£.         which  in  our  Court  of  Parliament  were  adjudged  toe"or'onaB 

J   .    &  affirmance 

the  said  J.  D.  according  to  the  form  of  the  statute  in  such  jn  the 
case  made  and  provided,  for  his  damages,  costs,  and  charges,  L°r^  ( 
which  he  had  sustained  and  expended  by  reason  of  the  delay 
of  execution  of  the  judgment  aforesaid,  on  pretext  of  prose- 
cuting our  writ  of  error,  brought  thereupon  by  the  said  C.  D., 
against  the  said  J.  D.  in  the  same  Court  of  Parliament,  the 
said  judgment  being  there  in  all  things  affirmed  :  whereof  the 
said  C.  D.  is  also  convicted,  as  by  the  inspection  of  the 
record  and  proceedings  thereof,  remitted  from  our  said  Court 
of  Parliament  into  our  said  Court  before  us,  likewise  appear  to 
us  of  record  ;  and  have  there  this  writ.  Witness,  (&c.) 

No.  41. 

(As  in  No.  36.  to  "  whereof  the  said  C.  D.  is  convicted,"  Writ  of  re- 
(&c.)  and  then  as  follows  :)  and  whereas  we  afterwards,  to  st 
wit,  in  -  terra  aforesaid,  by  our  writ,  commanded  you  that 
without  delay  you  should  cause  the  said  J.  D.  to  have  pos- 
session of  his  said  term,  then  to  come  of.  and  in  the  tenements 
aforesaid,  with  the  appurtenances;  and  that  you  should  make 
known  to  us  on  a  day  now  past,  in  what  manner  you  should 
have  executed  that  our  writ  :  and  because  since  the  issuing  of 
our  said  writ,  it  hath  appeared  to  us,  that  the  said  judgment, 
obtained  by  the  said  J.  D.  in  manner  aforesaid,  was  irre- 
gularly obtained,  and  that  our  said  writ  thereupon  issued 
improvidently  and  unjustly;  therefore  we  command  you,thnt 
if  possession  of  the  tenements  aforesaid,  with  the  appurte- 


416  APPENDIX. 

nances,  hath  by  virtue  of  our  said  writ,  been  given  or  de- 
livered to  the  said  J.  D.  then  that  without  delay  you  cause 
restitution  of  the  said  tenements  with  the  appurtenances,  to 
be  made  to  the  said  G.  H.  or  his  assigns,  at  whose  instance 
the  judgment  aforesaid  hath  been  set  aside  by  our  said  Court, 
he  the  said  G.  H.  being  landlord  and  owner  of  the  tenements 
aforesaid,  with  the  appurtenances ;  and  that  whatever  has 
been  done  by  virtue  of  our  said  writ,  you  deem  altogether 
void,  and  of  no  effect,  as  you  will  answer  the  contrary  at  your 
peril ;  and  in  what  manner,  &c.  (as  in  No.  34  to  the  end.) 

No.  42. 
Sdrefadas      (As  in  No.  36.  to  this  mark  K?%  and  then  as  follows  :)  and 

plaintiff     a^so  ^" *°r  tne  damages  which  the  said  John  Doe  had 

sustained,  as  well  on  occasion  of  the  trespass  and  ejectment 
aforesaid,  as  for  his  costs  and  charges  by  him,  about  his  suit 
in  that  behalf  expended  ;  whereof  the  said  C.  D.  is  convicted, 
as  appears  to  us  of  record :  And  now,  on  the  behalf  of  the 
said  J.  D.  in  our  said  Court  before  us,  we  have  been  informed, 
that  although  judgment  be  thereupon  given,  yet  execution  of 
that  judgment  still  remains  to  be  made  to  him  ;  wherefore  the 
said  J.  D.  hath  humbly  besought  us  to  provide  him  a  pro- 
per remedy  in  this  behalf:  and  we  being  willing  that  what  is 
just  in  this  behalf  should  be  done,  command  you,  that  by 
honest  and  lawful  men  of  your  bailiwick,  you  make  known 
to  the  said  C.  D.  (if  against  the  casual  ejector  "  to  the  said 
Richard  Roe,  and  also  to  and  the  tenants  in  pos- 
session of  the  premises  aforesaid,")  that  he  (or  they)  be  before 

us,  on wheresoever,  (&c.)  to  show  if  he  has  or  knows  of 

anything  to  say  for  himself,  or  (if  they  have  or  know,  or 
if  either  of  them  hath  or  knoweth,  of  any  thing  to  say 
for  themselves  or  himself,)  why  the  said  J.  D.  ought  not 
to  have  the  possession  of  his  said  term  yet  to  come  of,  and  in 
the  tenements  aforesaid,  and  also  execution  of  the  damages, 
costs  and  charges,  aforesaid,  according  to  the  force,  form 
and  effect  of  the  said  recovery,  if  it  shall  seem  expedient  for 
him  so  to  do,  and  further  to  do  and  receive  what  our  said 
Court  before  us  shall  consider  of  him  (or  them)  in  this  behalf : 
And  have  there  the  names  of  those  by  whom  you  shall  so 
make  known  to  him  (or  them)  and  this  writ. 

Witness,  Charles  Lord  Tenterden,  (&c.) 


APPENDIX.  417 


No.  43. 

Doe  on  the  demise  of  A.  B.  }  Upon  reading  the  affidavit  of  Rule  for 

J 


f.Roe     ......    JL.  M.  (&c.)  it  is  ordered,  that 

the  lessor  of  the  plaintiff  upon  notice,  (8cc.)  show  cause,  why  ings,  till  a 
further  proceedings  in  this  action  should  not  be  stayed,  until  ^e  appoint- 
a  sufficient  guardian  be   appointed    for  the    lessor  of  the  ed  for  an 
plaintiff,  who  will  undertake  to  pay  to  the  defendant  such  or  to  an- 
costs  as  may  happen  to  be  adjudged  to  him  ;  and  that  in  the  swerco8ts- 
mean  time  further  proceedings  be  stayed.     Upon  the  motion 
of  Mr.  - 

By  the  Court. 

No.  44. 

Doe  on  the  demise  of  A.  B.  7  Upon  reading  the  affidavit  ofxheiike, 
v.  Roe      .....      5  L.  M.  and  another,  it  is  ordered  till  security 

t)p  2T  i  v  G  n  fo  r 

that  the  lessor  of  the  plaintiff,  upon  notice,  (&c.)  show  cause,  costs. 
why  further  proceedings  in  this  action  should  not  be  stayed, 
until  *  sufficient  security  be  given  to  answer  the  defendant  his 
costs,  in  case  the  plaintiff  be  nonsuited,  or  a  verdict  shall  be 
given  for  the  said  defendant  ;  and  that  in  the  mean  time  fur- 
ther proceedings  be  stayed.  Upon  (&c.) 

No.  45. 

(As  in  No.  44,  to  *)  the  costs  taxed  in  a  former  action  The  like, 
brought  in  the  Court  of  King's  Bench,  on  the  demise  of  the  "        ' 


,e 

lessor  of  the  plaintiff,  for  the  same  premises,  are  paid  ;  and  in  costs  are 
themean  time  and  until  this  Court  shall  otherwise  order,  that  former  a*- 
all  further  proceedings  be  stayed.     Upon  (&c.)  tioninK.B. 

No.  46. 

Upon  reading  the  affidavit  of  G.  H.  it  is  ordered,  that  the  The  like, 
lessor  of  the  plaintiff  upon  notice  (&c.)  shall  show  cause,  (&c.)  °f^tmene 
why,  upon  the  defendant's  bringing  into  this  Court  the  prin-  money,  &c. 
cipal  money  and  interest  due  to  the  lessor  of  the  plaintiff  upon 
his  mortgage,  and  also  such  costs  as  have  been  expended  in 
any  suit  or  suits  at  law  or  equity  upon  such  mortgage,  his 
costs  in  this  cause  to  be  ascertained,  computed  and  taxed  by 
one  of  the  prothonotarics,   the  money   so  brought  into  this 

E  E 


418  APPENDIX. 

Court  should  not  be  deemed  and  taken  to  be  in  full  satisfac- 
tion and  discharge  of  such  mortgage ;  and  upon  payment 
thereof  to  the  lessor  of  the  plaintiff,  why  all  proceedings  in  this 
action  should  not  be  stayed  ;  and  why  the  mortgaged  pre- 
mises, and  the  lessor  of  the  plaintiff's  estate  and  interest 
therein,  should  not  be  assigned  and  conveyed,  at  the  cost  and 
charges  of  the  defendants,  to  such  persons  as  shey  shall 
appoint :  and  why  all  deeds,  evidences  and  writings,  in  the 
custody  of  the  lessor  of  the  plaintiff,  relating  to  the  title  of  such 
mortgaged  premises,  should  not  be  delivered  up  to  the  defend- 
ants, or  to  such  person  or  persons  as  they  shall  for  that  purpose 
nominate  and  appoint. 

By  the  Court. 

No.  47. 
The  like,    Doe  on  the  demise  of  A.  B.    *  Upon  reading  the  affidavit  of 

of  SJuS*      v' Roe *  the  defendant»  il;    is   ordered, 

in  K.  B.  upon  the  said  defendants  forthwith  bringing  into  Court  the 
whole  rent  due  and  in  arrear,  and  such  sum  to  answer  the  costs 
as  the  master  shall  direct,  that  further  proceedings  in  this 
cause  be  stayed.  And  it  is  referred  to  the  master  to  compute 
the  said  arrears  of  rent,  and  to  tax  the  said  costs;  and  upon  the 
said  defendant's  paying  the  said  lessor  of  the  plaintiff  what 
the  said  master  shall  find  due  and  allow  for  the  said  rent  and 
costs,  that  all  further  proceedings  therein  as  to  the  non-pay- 
ment of  the  said  rent,  be  stayed.  But  it  is  further  ordered,  if 
the  said  lessor  of  the  plaintiff  has  any  other  title  to  the  pre- 
mises in  question,  than  for  the  non-payment  of  the  said  rent, 

he  is  at  liberty  to  proceed.     Upon  the  motion  of  Mr.  . 

By  the  Court. 


INDEX. 


A. 

ABATEMENT, 

mode  of  pleading  in,  271. 

jurisdiction  of  another  court  may  be  pleaded  in,  270. 

ancient  demesne,  good  plea  in,  272. 

not  created,  by  death  of  lessor  of  plaintiff,  320. 

defendant,  after  assizes  began,  332. 
plaintiff,  in  ancient  practice,  203. 
ABATOR,  not  within  stat.  32  Hen.  Vm.  c.  33.    42. 
ACCORD,  formerly  good  plea  in  ejectment,  270  (c) 
ACTIONS, 

real,  when  first  disused,  10. 

statute  of  fines  only  includes,  94. 
consolidation  of,  264.  361. 

ADMINISTATOR.— Vide  Personal  Representative. 
ADMINISTRATION,  Letters  of,  when  evidence,  289.  300. 
ADMITTANCE,  to  Copyholds, 

surrenderee  cannot  bring  ejectment  before,  64. 

cannot  devise  before,  65. 
heir  may  bring  ejectment  before  63.  286. 

except  against  lord,  63.  286. 
title  relates  to  time  of  surrender  after,  64. 
copyholds  cannot  be  forfeited  before,  308. 
manner  of  proving,  287, 
to  chambers,  not  similar  to,  64  (g) 
ADVOWSON,  ejectment  will  not  lie  for  an,  18. 
AFFIDAVIT, 

to  stay  proceedings  uncie   4  Geo.  II.  c  28.     172. 
7  Geo.  II.  c.  20.     362. 
for  leave  to  plead  ancient  demesne,  272. 
for  motion  for  trial  at  bar,  324. 
in  ancient  practice,  of  sealing  lease,  201. 
of  service  of  declaration, 

must  be  annexed  to  declaration,  243. 

E  E  2 


420  INDEX. 

AFFIDAVIT,  continued. 
of  service  of  declaration, 
when  to  be  made,  243. 
how  to  be  entitled,  243. 
by  and  before  whom  to  be  made,  243. 
facts  to  be  stated  in,  244. 

when  action  founded  on  1  Geo.  IV.  c.  87.  246, 367. 
on  1  Win .  I V.  c.  70.  247.  376. 
must  be  positive,  and  why,  244. 
when  more  than  one  necessary,  245. 
defective,  how  remedied,  246. 
AFTER-MATH,  12. 
AGENT, 

may  give  notice  to  quit,  126. 
authority  to,  when  to  be  given,  126,  (b) 
AGREEMENT, 

void,  when  implied  tenancy  created  by,  110. 
for  lease,  proviso  for  re-entry  in,  188. 

what  words  will  create,  113,  &c. 
formerly  equivalent  to  lease,  33. 
for  increase  of  rent  does  not  alter  tenancy,  144. 
ALDER  CARR,  24. 

ALTERNATIVE  Notice.— Fide  Notice  to  quit. 
AMENDMENT  of  declaration,  224. 

courts  liberal  in  permitting,  226. 
costs,  how  payable  in  respect  of,  226. 
ANCIENT  Demesne,  plea  of,  272. 
ANCESTOR, 

dying  under  disability  to  enter,  58. 

possessed,  evidence  of  seisin,  281. 
descent  from  common,  how  proved,  282. 
APPEARANCE, 

how  regulated  by  common  law,  254. 

statute,  255. 

who  may  appear  as  landlords,  257,  &c. 
of  what  term  to  be  entered,  268. 
how  to  be  made,  265,  &c. 

under  1  Wm.  IV.  c.  70.    249. 
1  Geo.  IV.  c.  87.    369. 
tune  allowed  for,  248,  &c. 
cannot  be  entered  by  landlord  for  tenant,  266. 

by  parson  for  right  to  perform  service,  261. 
if  trick  to  put  off  trial,  261. 
when  permitted  by  wife  alone,  261. 
by  landlord,  motion  for,  when  to  be  made,  267. 
power  once  assumed  by  king's  bench  respecting,  260. 
how  lessor  to  proceed  after,  269. 
ARTICLES  of  church  of  England, 

when  proof  of  subscription  to,  necessary,  303. 
ASSIGNEE, 

of  a  bankmpt,  may  maintain  ejectment,  67. 
evidence  in  ejectment  by,  305. 


INDEX.  421 

ASSIGNEE,  continued. 
of  a  bankrupt, 

assignment  to,  not  breach  of  covenant  not  to  assign,  160. 

180.  191. 
of  an  insolvent  debtor, 

may  maintain  ejectment,  67. 
evidence  in  ejectment  by,  306. 
by  estoppel,  not  witbin  32  Henry  VIII.  c.  34.    76. 
of  mortgagee,  may  maintain  ejectment,  61. 

when  exempted  from  giving  notice  to  quit,  109. 
may  defend  as  landlord,  260. 
evidence  in  ejectment  by,  307. 
of  reversion,  may  maintain  ejectment,  in  what  cases,  72.  189. 

evidence  in  ejectment  by,  318. 
ASSIGNMENTS  of  Lease,  when  presumed,  318. 
ATTACHMENT, 

granted,  on  breach  of  consent  rule,  264.  334. 
for  disturbing  sheriff  in  execution,  343. 
how  in  the  case  of  a  peer,  338. 
not  granted,  on  consent  rule,  till  signed  by  lessor,  263.  272. 

upon  stat.  7  Geo.  II.  c.  20.    366. 
ATTESTATION  OF  WITNESSES, 

to  devise  of  freeholds,  what  sufficient,  290. 
how  to  be  made,  291. 
form  of,  294. 
by  mark  sufficient,  293. 
ATTORNEY, 

must  not  be  lessee  in  ejectment,  200,  (c) 
forms  in  ancient  practice,  executed  by,  201. 
warrant  of  to  confess  judgment,  when  lease  forfeited  by,  180. 
ATTORNMENT  to  stranger  destroys  tenancy,  124. 
AWARD,  ejectment  will  lie  on,  91. 


B 

BAIL,  common, 

must  be  filed,  in  what  cases,  250. 
to  file,  when  part  of  consent  rule,  262. 
time  of  filing,  250. 
in  error, 

notice  of,  unnecessary,  349. 
who  may  be,  349. 
sum  required  of,  350. 
when  chargeable  with  mesne  profits,  351. 
in  action  for  mesne  profits,  381. 
BAILIFF,  service  of  declaration  upon,  not  good,  238. 
BANKRUPT,  assignee  of. — Vide  Assignee  of  Bankrupt. 
BANKRUPTCY, 

proviso  in  lease  to  re-enter  on,  good,  159. 
and  sale,  breach  of  covenant  to  occupy,  181. 

no  breach  of  covenant  not  to  assign,  180. 


INDEX. 

BANKRUPTCY  continued, 

no  plea  to  action  for  mesne  profits,  387. 

BARGAINEE  OF  REVERSION,  within  32Hen.,VIII.  c,  34.  76. 
BEAST-GATE,  24. 

BILL  OF  PEACE,  when  granted  in  ejectments,  352. 
BIRTHS,  how  proved,  283,  284. 
BIS  PETITUM,  no  objection  in  ejectment,  25. 
BODY  POLITIC — Vide  Corporation. 
BOG,  25. 

BOILARY  OF  SALT,  19. 
BREACHES,  particulars  of, 

lessor,  how  and  when  compelled  to  give,  353. 

evidence  confined  to  breaches  contained  in,  317. 

rent  as  stated  in,  need  not  be  proved,  317. 

BUILDING  by  encroachment,  when  to  be  mentioned  in  demise,  30. 
BURGAGE,  26. 


C. 

CAPIAS  AD  SATISFACIENDUM,  writ  of, 
when  lessor  entitled  to,  for  costs,  335,  &o. 
when  to  be  sued  out  by  defendant  for  costs,  337. 
CASUAL  EJECTOR, 
in  ancient  practice, 

when  first  used,  and  why,  13. 
suit  proceeds  in  name  of,  201. 
cannot  confess  judgment,  204. 
in  modern  practice, 

declaration  against,  how  entitled,  207. 
under  stat.  1  Wm.  IV.  c.  70.,  207. 
judgment  against, 

motion  for,  for  want  of  appearance, 

when  absolute  in  first  instance,  235. 
on  what  founded,  243. 

not  to  be  moved  in  court  in  common  cases,  247. 
at  what  time  to  be  made,  248,  249. 
on  4  Geo.  II.  c.  28.     172. 
on  nonsuit  for  not  confessing,  323. 
is  not  within  stat.  4  Geo.  II.  c.  28.  s.  2.    170. 
rule  for,  when  and  how  drawn  up,  249. 
when  common  bail  necessary  before,  250. 
how  and  when  to  be  signed,  252.  262.  267.  322. 
in  what  cases  set  aside,  and  how,  252. 
how  entered,  when  some  of  several  defendants  confess,  323. 
not  equivalent  to  trial  under  4  Geo.  II,  c.  28.    170. 
CATTLE-GATES,  24. 

CERTIORARI,  writ  of,  ejectment  may  be  removed  by,  203. 
CESTUI  QUE  TRUST, 

lease  by,  will  not  bar  trustee  from  recovering  in  ejectmeat,  88. 

when  legal  estate  vested  in,  82,  &c. 

when  possession  of  not  adverse  to  trustees,  50. 


INDEX. 

CESTUI  QUE  TRUST,  continued, 
when  demise  to  be  laid  by,  211, 
CESTUI  QUE  USE,  within  32  Hen.  VIII.  c.  34.  76. 

entry  by  will  avoid  fine,  100. 
CHAMBER,  27. 
CHAPEL, 

ejectment  will  he  for,  18. 
how  to  be  described,  18. 
service  of  declaration  for,  238. 
CHURCH,  19. 

CHURCHWARDENS,  service  of  declaration  upon,  237. 
may  maintain  ejectment,  79. 
one  cannot,  80. 

CLERK  OF  THE  RULES,  ejectment  book  how  to  be  kept  by,  249. 
CLOSE,  ejectment  will  lie  for  a,  when,  27. 
COAL  MINES  in  Durham,  how  described  in  demise,  80. 
CO-DEFENDANT,  landlord  maybe  with  tenant,  255. 
CODICIL,  signing  of,  not  signing  of  will,  292. 
COMMON  BAIL.— Vide  Bail. 
COMMON,  Tenants  in.— Vide  Tenant. 
COMMON, 

for  what  kinds  of,  ejectment  will  lie,  19. 
encroachment  on,  belongs  to  whom,  51. 
of  pasture  generally,  good  after  verdict,  330. 
COMPETENCY  OF  WITNESSES,  279,  295. 
CONDITION, 

what  words  will  create,  188,  189. 
how  dispensed  with,  190. 
in  leases  for  lives  and  years,  difference  of,  196. 
once  gone,  gone  for  ever,  190. 
dispensation  of  part,  is  of  whole,  190. 
breach  of. —  Vide  Proviso. 
CONFESSION  OF  LEASE,  &c.  262. 
CONSENT  RULE, 
when  invented,  16. 
form  and  terms  of,  262. 

is  evidence  of  defendant's  possession,  276.  390. 
when  non-suit  for  want  of  lease,  &c.  prevented  by,  263. 
how  drawn  up  in  case  of  joint-tenants,  &c.  263. 
lessor  of  plaintiff  must  join  in,  263. 
attachment  lies  for  breach  of,  264.  334. 
when  to  be  produced  at  trial,  276.  321. 
CONSOLIDATION  RULE,  264. 
CONTEMPT  OF  COURT, 

misconduct  on  delivery  of  declaration  is,  206,  (b.) 
assigning  death  of  plaintiff  for  error  is,  204. 
release  of  plaintiff  to  tenant  is,  204. 
CONTINUAL  CLAIM,  what  is,  and  how  made,  101. 
CONUSEE,  of  statute  Merchant  or  Staple, 
may  maintain  ejectment,  69. 
evidence  by,  301. 
CONUSOR  of  fine. 

must  have  interest  in  possession,  98. 


424  INDEX. 

COPYHOLDER, 

may  maintain  ejectment,  63. 
cannot  forfeit  lands  before  admittance,  308. 
evidence  in  ejectment  by,  309. 
devisee  of,         -\ 

surrenderee  of,  >  Vide  Copyholds, 
heir  of,  J 

lessee  of,  may  maintain  ejectment,  65. 
evidence  in  ejectment  by,  309. 
COPYHOLDS, 

not  affected  by  descents  cast,  42, 
within  stat.  32  Hen.  VIII.  c.  34.  77. 
not  within  stat.  of  uses,  88. 

stat.  29.  Car.  II.  c.  3.    71. 
cannot  be  general  occupant  of,  50. 
enfranchisement  of,  may  be  presumed,  309. 
what  sufficient  will,  to  pass,  299. 
forfeiture  of,  cannot  be  before  admittance,  308. 
who  may  take  advantage  of,  61. 
q.  if  21  Jac.  I.  c.  16.  operates  on,  62. 
ejectment  for,  may  be  maintained, 

before  admittance,  by  grantee,  64. 
by  heir,  66. 
except  against  lord,  64. 
after  admittance  by  devisee,  65. 

by  surrenderee,  65, 213. 
evidence  in  ejectments  for,  309. 
ancient  demesne,  no  plea  in  ejectment  for,  272. 
receipt  of  customary  rent  for,  does  not  create  tenancy,  124. 
CORPORATIONS,    ' 

cannot  make  a  discontinuance,  41. 
are  within  32  Hen.  VIII.  c.  33.  43. 
may  maintain  ejectment,  78. 
how  notice  to  quit  to  be  given  to,  131. 
officers  of,  may  give  notices  to  quit,  129. 
how  demise  to  be  laid  by,  215. 
how  name  of  to  be  stated  in  demise,  217. 
CORN  MILLS,  27. 
COSTS  payable, 

how  under  4  Geo.  II.  c.  28,    167. 
1  Geo.  IV   c.  87.    339. 
by  infant's  lessor,  when,  338. 
by  feme,  after  baron  co-defendant's  death,  338. 
when  to  one  of  several  defendants  acquitted,  337. 
by  such  defendants  as  refuse  to  confess,  323. 
by  lessor,  to  which  defendant  he  pleases,  339. 
not  payable, 

by  lessor,  if  he  join  not  in  consent  rule,  339. 
by  lessor  suing  in  forma  pauperis,  though  dispaupered,  339. 
by  executor  of  lessor  in  any  case,  335. 
to  executor  of  lessor  on  consent  rule,  when,  335. 
how  to  be  recovered  by  lessor, 

on  judgment  for  want  of  appearance,  334,  335. 


INDEX.  425 

COSTS,  continued, 

how  to  be  recovered  by  lessor, 

on  non-suit  for  not  confessing,  334. 
when  some  of  several  defendants  confess,  335. 
on  verdict  against  tenant,  335. 
landlord,  336. 

feme  sole  married  before  execution,  336. 
rule  respecting,  on  amendments,  226. 
each  defendant  liable  for  the  whole,  335. 
general  remedy  for  recovery  of,  336,  391. 
what  recoverable  in  action  for  mesne  profits,  385.  391. 
defendant  when  entitled  to,  by  8  &  9  W.  III.  c.  11.  337. 
how  to  be  recovered,  by  defendant, 

in  the  king's  bench,  336. 
in  the  common  pleas,  336. 
when  plaintiff's  lessor  is  a  peer,  338. 
security  granted  for,  in  what  cases,  353,  &c. 
proceedings  stayed  till  payment  of,  when,  355,  &c. 
if  not  paid,  court  will  not  non-pros  second  ejectment,  360. 
in  action  for  mesne  profits, 

when  security  for  granted,  382. 
certificate  for  necessary,  if  damages  under  40s.,  392. 
COTTAGE,  26. 
COUNTERPART,  of  lease, 

evidence,  without  notice  to  produce,  311. 
COURTS  OF  EQUITY, 

ousters  of  leaseholders  formerly  redressed  by,  8. 
application  to,  under  4  Geo.  II.  c.  28.  167—171. 
interference  of,  to  prevent  repeated  ejectments,  352. 
mesne  profits,  before  entry  to  avoid  fine,  recoverable  in,  39 
COURT-ROLLS, 

when  evidence,  298. 
court  will  grant  inspection  of,  298. 
COVENANT,  writ  of,  2. 

action  of,  will  waive  a  forfeiture,  when,  174. 
COVENANTS, 

what  run  with  the  land,  73,  &c. 
are  collateral,  75.   ; 
are  good,  158. 
bach  of, 

who  may  take  advantage  of,  190. 
when  tenancy  determined  by,  158. 
who  may  bring  ejectment  on,  72.  189. 
actual  entry  not  necessary  on,  93.  158. 
landlord  not  bound  to  notice,  50. 
what  will  be  a  waiver  of,  192,  &c. 
suspension  of,  194. 

waiver  of,  not  waiver  of  subsequent  breach,  193. 
continuing  breach,  193. 
evidence  in  ejectment  on, 

what  amounts  to,  not  to  assign,  177, 178.  181.  318. 
let,  179.  191.  318. 


426  INDEX,     . 

COVENANTS,  continued, 

breach  of,  what  amounts  to,  not  to, 

put  away,  177. 
part  with,  178. 
commit  waste,  182. 
exercise  a  trade,  182. 
to  actually  occupy,  181. 
insure,  183,  195. 
deliver  up  trees,  184, 
give  notice  of  felling  timber,  186. 
repair  generally,  184. 

after  notice,  184,  194. 
how  affected  by  statutory  enactments,  186. 
and  conditions  difference  between,  197. 
in  agreement  for  lease,  what  words  create,  189. 
what  affected  by  hereafter  in  proviso,  185. 
CREDITORS  may  witness  wills,  295. 
CROPS,  growing, 

security  not  to  take  away,  when  to  be  given,  322. 
pass  by  writ  of  possession,  when,  347. 

CUSTOMARY  ESTATES  not  affected  by  descents  cast,  42. 
CUSTOMS, 

to  give  three  or  twelve  months' notice  to  quit,  good,  140. 
must  be  strictly  proved,  141. 
manner  of  proving,  287. 


P. 

DAMAGES, 

in  ejectment, 

action  may  proceed  for,  though  term  expire,  228. 

lessor  die,  320. 
are  nominal  only,  320. 

formerly  comprehended  real  injury  sustained,  379. 
in  action  for  mesne  profits,  391. 
DEATH  jg* 

of  lessor,  no  abatement  of  suit/48p  §&>O 

q.  if  scire  facias  necessary  after,  346. 
security  given  for  costs  upon,  354. 
costs  not  payable  to  defendant  upon,  335. 
of  defendant,  not  cause  of  error,  when,  333. 
suggestion  of,  how  entitled,  333. 
q.  if  scire  facias  necessary  upon,  346. 
of  plaintiff,  no  abatement  of  suit,  203. 

to  assign  for  error,  is  a  contempt,  204. 
of  person,  how  proved,  282,  &c. 
presumption  of,  when  arises,  285. 
DECLARATION, 

how  framed  in  ancient  practice,  200. 
modern  practice,  15, 
action  for  mesne  profits,  384. 


INDEX.  427 

DECLARATION,  continued, 
how  entitled,  207. 

under  1  Wm.  IV.  c.  70.    208. 
may  be  by  bill,  or  by  original,  207. 
service  of,  suit  commenced  by,  206. 

resembles  service  of  writ,  234. 

should  be  personal,  235. 

must  be  before  essoign-day,  232. 

should  be  on  party  actually  in  possession,  235. 

how  made  in  common  cases, 

upon  tenants  in  possession,  234,  235. 
wife  of  tenant,  236. 
child  or  servant  of  tenant,  237. 
when  tenant  absconds,  239,  &c. 
in  ejectment  for  a  chapel,  238. 

poorhouse,  237. 

when  some  of  the  houses  are  un  tenanted,  238. 
upon    one   tenant  in  possession,    good    against    all, 

when,  236. 

wife  of  one  tenant  not  good  against  all,  237. 
not  good,  upon  person  having  keys,  238. 

receiver  under  Court  of  Chancery,  238. 
irregular,  when  made  good,  236,  &c. 
court  will  not  antedate,  242. 
tenant  must  give  notice  of,  when,  256. 
may  be  good  for  part,  and  bad  for  part,  242. 
in  action  for  mesne  profits,  384. 
amendment  of, 

semble,  may  be  before  appearance,  225. 
may  be  in  demise,  term,  &c.  226,  &c. 
names  of  parties,  229. 
description  of  premises,  229. 
not  permitted  to  real  injury  of  defendant,  227. 
DECLARATIONS 

of  deceased  relations, 

when  evidence,  283. 
when  not  evidence,  284. 
tenants,  when  evidence,  280. 
neighbours,  not  evidence,  284, 
not  evidence,  if  parties  living,  284,  285. 
DEED,  demise  by,  deed  need  not  be  proved,  217. 

now  unnecessary,  216. 
DEFENDANT, 

who  may  be  admitted,  256,  &c. 

death  of,  no  abatement  of  suit  when,  332. 

cause  of  error,  when,  333. 
evidence  in  ejectment,  on  the  part  of,  319. 
in  action  for  mesne  profits,  who  should  be,  388. 
when  entitled  to  make  the  first  address  to  the  jury,  288.  301. 
DEMISE,  in  declaration, 

mast  be  consistent  with  lessor's  title,  209.  277. 
court  will  strike  out,  when,  211. 


428  INDEX. 

DEMISE,  continued. 

declaration,  how  entitled  with  respect  to,  208. 

on  a  joint,  lessors  must  have  joint  interest,  209. 

who  may  make  a  joint  or  several,  209. 

when  several  distinct  necessary,  211, 

under  a,  of  whole,  undivided  moiety  may  he  recovered,  21 1. 

must  he  after  lessor's  title  accrues,  212. 

should  be  soon  after  lessor's  title  accrues,  and  why,  212. 

not  necessary  to  state  premises  to  he  in  a  parish  in,  218. 

if  parish  is  stated  in,  must  be  proved  as  laid,  219. 

premises,  how  described  in,  when  more  than  one  parish,  220. 

need  not  state  exact  quantities  to  he  recovered,  221. 

time  of  laying,  by  heir,  212. 

posthumous  son,  213. 
surrenderee  of  copyholds,  213. 
assignees  of  bankrupt,  213. 
under  stat.  4  Geo.  II.  c.  28.    213. 
when  fine  levied,  214. 
against  tenants  at  will,  214. 
when  commencement  of  tenancy  unknown,  214. 
how  to  be  laid,  by  corporations,  215. 

overseers  of  a  parish,  79. 
in  ejectment  for  tithes,  217. 
by  masters  of  colleges,  &c.  218. 

infants,  218. 

period  of,  caution  respecting,  215. 
is  transitory,  203. 

may  be  amended  after  its  expiration,  227. 
intendment  is  in  favour  of,  after  verdict,  328. 
DESCENTS  CAST, 
definition  of,  41. 
happen  when,  41. 
doctrine  of,  not  applicable  to  ejectments,  and  why,  41,  (e) 

summary  of,  45. 

what  persons  are  not  affected  by,  42. 
right  of  entry,  why  tolled  by,  41. 

when  tolled  by  42,  &c. 
need  not  be  pleaded  in  ejectment,  270. 
DESCRIPTION 

of  premises,  what  certainty  required  in,  23. 
of  parish  of  demised  premises,  material,  219. 
DEVISEES, 

not  affected  by  descents  cast,  43. 
of  copyholds,  cannot  devise  before  admittance,  65. 
refusal  to  pay  rent  to,  when  no  disclaimer  of  tenancy,  125. 
may  maintain  ejectment,  71. 

defend  ejectment,  259. 
evidence  by,  of  freeholds,  288,  &c. 
copyholds,  298. 
terms  for  years,  300. 

cannot  bring   ejectment  for  rent   due   to   them   as   executors, 
176. 


INDEX.  429 

DEVISED 

to  trustees,  legal  estate  vested  in  them  by,  when,  82,  &c. 
of  a  term,  no  breach  of  covenant  not  to  assign,  177. 
to  witnesses  to  a  will,  when  void,  295. 

when  not  void,  296. 

of  freehold  interest,  how  to  be  made,  290. 
DISCLAIMER  of  Tenancy,  125. 
DISCONTINUANCE, 
definition  of,  35. 
happens  in  what  cases,  35. 
different  modes  of  making,  36. 
when  caused  by  levying  a  fine,  36,  &c. 
law  respecting,  how  altered  by  32  Hen.  VHI.  c.  28.    38. 

11  Hen.  VII.  c.  20.     39. 
cannot  be  effected  by  a  corporation,  41. 
DISSEISIN  at  Election,  41,  (c) 
DISSEISOR, 

within  stat.  32  Hen.  VIII.  c.  33.     43. 
donee  or  feoffee  of,  not  within  stat.  32  Hen.  VHE.  c.  33.    43. 
DISTRESS  for  rent, 

when  waiver  of  notice  to  quit,  154.  155.  174. 
insufficient, 

right  of  re-entry  at  common  law  waived  by,  174. 

under  stat.  4  Geo.  H.  c.  28,  not  waived 

by,  174. 

evidence  of,  what  necessary,  317. 
DOUBLE  RENT,  action  for,  154*. 
DOUBLE  VALUE,  action  for  132.  153. 
DOWER,  ejectment  will  not  lie  for,  before  assignment,  66. 


E. 


ECCLESIASTICAL  PERSONS, 

not  within  stat.  21  Jac.  I.  c,  16.    46. 

demise  by,  how  laid,  217. 
EJECTIONS  FIRM^E,  writ  of,  7. 
EJECTMENT, 

definition  of,  1. 

formerly  only  action  of  trespass,  1. 

when  term  first  recovered  in,  9. 

how  and  when  titles  first  tried  in,  10. 

confined  to  possessory  titles,  and  why,  11. 

will  lie,  for  what  things,  18,  &c. 

of  bringing  a  second,  311. 
EJECTOR,  CASUAL.—  Vide  Casual  Ejector. 
ELEGIT, 

tenant  by,  may  maintain  ejectment,  when,  70.  109. 
evidence  in  ejectment  by,  301. 

judgment  debtor  in, 

estopped  from  setting  up  tenant's  interest,  70. 


430  INDEX. 

ELEGIT,  continued. 
judgment  debtor  in, 

must  give  notice  to  quit,  when,  70. 
ENTRIES, 

on  court  rolls,  when  evidence,  298. 
in  a  bible,  when  evidence,  286. 
in  parsons'  books,  when  evidence,  303. 
ENTRY,  ACTUAL, 

formerly  always  made,  and  why,  11.  157. 
is  still  necessary, 

when  fine  with  proclamations  levied,  and  why,  93.  278. 
when  ancient  practice  is  used,  200. 
is  not  necessary, 

if  party  levying  fine  has  not  a  freehold  interest,  97,  &c. 

when  fine  levied  at  common  law,  95. 

when  all  the  proclamations  not  completed,  99. 

when  fine  is  once  avoided,  102. 

when  fine  is  only  accepted,  99. 

in  ejectment  on  the  forfeiture  of  a  lease,  158. 

on  fine  by  joint  tenant,    &c.    without   previous    ouster, 

98. 

to  avoid  statute  of  limitations,  but  prudent,  102. 
before  fine  levied,  will  not  avoid  subsequent  fine,  95. 
party  making  must  have  right  to  enter,  96. 
time  of  making  to  avoid  a  fine,  97. 
by  whom  to  be  made,  87.  99, 
how  to  be  made,  100. 

ejectment  must  be  brought  within  a  year  after,  102. 
ENTRY,  right  of,  must  be  in  lessor,  33.  157. 

proved  at  the  trial,  and  how,  275.  313. 
how  taken  away,  34. 
is  not  devisable,  97. 
must  accrue  before  day  of  demise,  212. 
of  judgment — Vide  Judgment, 
of  plaintiff,  how  stated  in  declaration,  221. 
confessed  by  consent  rule,  262. 
when  pleadable  puts  darrien  continuance,  274. 
of  one  joint  tenant,  &c.  entry  of  all,  100. 
lease  for  life  cannot  be  avoided  without,  196. 

years  cannot  be  avoided  without,  when,  197. 
of  nonsuit  for  not  confessing  lease,  &c.  263. 
may  be  made  pending  error,  when,  351. 
upon  demised  lands,  substantial  time  of,  146,  &c. 
when  and  how  proved  in  action  for  mesne  profits,  391 . 
ERROR, 

judgment  quod  defendens  sit  quietus  is,  332. 
death  of  defendant,  is  not,  332. 

want  of  suggestion  of,  is,  332. 
rule  not  to  commit  waste  pending,  350. 
bail  in,  349. 

action  for  mesne  profits  will  lie  pending,  381. 
elegit  for  mesne  profits  may  be  sued  out  after,  393. 


INDEX. 


431 


ERROR,  writ  of, 

will  not  lie,  before  verdict,  347. 

against  casual  ejector,  347. 

except  in  ancient  practice,  347,  (d) 
if  defendant  do  not  confess,  348. 
how  brought  by  landlord,  348. 
no  stay  of  execution,  until  bail  put  in,  350. 

ESCHEAT,  Lord  by, 

not  within  32  Hen.  VIII.  c.  34.   76. 
may  defend  judgment,  quaere,  260. 

ESSOIGN-DAY, 

declaration,  must  be  served  before,  232. 

except  under  1  Wm.  IV.  c.  70.     376. 
receipt  of,  must  be  acknowledged  before,  237. 
ESTATE-TAIL,  how  discontinued,  35. 

EVIDENCE, 

on  the  part  of  the  lessor, 
general  points  of,  275. 
by  heirs,  at  common  law,  281. 
to  copyhold  lands,  286. 
customary,  287. 
devisees,  of  freeholds,  288,  &c. 
copyholds,  298. 
terms  for  years,  300. 
tenant  by  elegit,  301. 

conusees  of  statutes  merchant  or  staple,  301. 
rectors  or  vicars,  302. 
guardians,  305. 
assignees  of  bankrupts,  305. 

insolvent  debtors,  306. 
personal  representatives,  306. 
mortgagees,  306. 
lords  of  manors,  307. 
copyholders,  309. 

lessees  of,  309. 

joint  tenants,  &c.  against  companions,  277. 
landlords  against  tenants, 

on  the  termination  of  leases,  310. 
notices  to  quit,  312. 
the  forfeiture  of  leases,  316. 
assignees  of  the  reversion,  318. 
on  the  part  of  the  defendant,  319. 
in  actions  for  mesne  profits, 

when  profits  to  be  recovered,  are  antecedent  to  demise  391. 

subsequent  to  demise,  389. 
EXECUTION, 

sheriff",  may  demand  indemnity  before,  342. 

power  of,  to  enforce  342. 
stayed  by  consent  rule,  when,  263. 
judge's  order,  when,  322. 
is  made  at  lessor's  peril,  23.  34 1 . 


432  INDEX. 

EXECUTION,  continued. 
how  to  be  taken  out, 

on  judgment  for  want  of  an  appearance,  251. 
after  verdict  against  landlord,  340. 
when  some  defendants  die,  333. 
when  a  sole  defendant  dies,  346. 
on  stat.  1  Wm.  IV.  c.  70.   340. 
when  defendant  marries  before  execution,  346. 
cannot  be  taken  out  pending  error,  350. 
not  stayed  by  writ  of  error  till  bail  put  in,  350. 
set  aside  if  lessor's  right  cease  before  writ  issued,  341. 
landlord  on  error  brought  must  move  to  stay,  348. 
must  only  be  for  premises  recovered,  341. 

or  courts  will  interfere,  341. 

sometimes  confined  by  rule  to  premises  recovered,  342. 
how  to  be  made  by  sheriff,  342,  343. 
instances  of  insufficient,  343,  344. 
attachment  granted  for  disturbing,  343. 
when  second  granted,  344,  &c. 
when  scire  facias  necessary  before,  346. 
executed,  when  judgments  set  aside  after,  252.  267. 

cannot  apply  under  4  Geo.  II.  c.  28.  after,  167. 
7  Geo.  II.  c.  20.  after,  362. 

for  mesne  profits,  stayed  until  error  determined,  38. 
of  will,  under  statute  of  frauds,  288,  &c. 
EXECUTION,  writ  of. 

its  nature,  340. 
how  drawn  up,  341. 

lessor  may  enter  peaceably  without,  339. 
EXECUTOR.— Vide  Personal  Representative. 
EXTINGUISHMENT  of  estate,  189. 

F. 

FEME  COVERT, 

cannot  constitute  an  attorney,  201. 

devise  to  trustees,  to  suffer  to  receive  rents,  83. 

receipt  of  rent  by,  after  separation  from  baron,  120. 

service  of  declaration  upon,  236. 

may  defend  ejectment  against  baron,  when,  261. 

liable  to  costs,  if  baron  co-defendant  die,  338. 

judgment  against,  not  evidence  against  baron,  390. 

statute  of  limitations  runs  not  against,  45. 

not  affected  by  descents  cast,  42. 

baron,  cannot  discontinue  lands  of,  39. 

must  avoid  fine  within  five  years,  99. 
FEOFFMENT,  by  tenant  for  years,  97. 
FIERI  FACIAS,  writ  of, 

when  lessor  entitled  to  for  costs,  336. 

when  sued  out  by  defendant  for  costs,  337. 

evidence,  when  lessor  claims  under,  302. 

superseded  by  writ  of  possession,  when,  347. 


INDEX.  433 

FINE, 

when  entry  necessary  to  avoid,  93,  &c. 

when  not,  95.  98. 

when  avoided  by  entry,  96. 

when  discontinuance  worked  by,  36.  96. 

by  joint  tenant,  &c.  no  ouster  of  companion,  55. 

tenant  for  life  accepting,  is  a  forfeiture,  99. 

and  non-claim,  need  not  be  pleaded,  270. 

mesne  profits  before  avoidance  of,  how  recovered,  392. 
FISHERY,  20. 
FORFEITURE, 

by  copyholder. —  Vide  Copyholds. 

of  lease. — Vide  Covenant. 
FREE  BENCH,  65. 
FURZE  and  HEATH,  28. 


G. 

GAVELKIND,  56. 
GLEBE, 

parson  cannot  bring  ejectment  for,  after  sequestration,  81. 
evidence  in  ejectment  for,  304. 
GORSE  and  FURZE,  28. 
GUARDIANS, 

in  socage  or  testamentary,  may  bring  ejectment,  66. 

make  actual  entry  for  ward,  100. 
evidence  in  ejectments  by,  305. 


H. 

HABEAS  CORPUS,  ejectments  removed  from  inferior  courts  by 

203. 
HABERE  FACIAS  POSSESSIONEM,  writ  of, 

nature  of,  340. 

may  issue  on  judge's  certificate,  when,  321. 

how  drawn  up,  340,  341. 

return  of,  should  be  made,  344. 

when  evidence  in  action  for  mesne  profits,  389. 

Vide  Execution. 

HABERE  FACIAS  SEISIN  AM,  writ  of,  340. 
HAY-GRASS,  21, 
HEARSAY,  when  evidence,  283,  284. 
HEIRS, 

time  allowed  for  entry  of,  by  21  Jac.  I.  c.  16.     58. 

demise  by,  when  to  be  laid,  212. 

staying  proceedings  by,  under  7Geo.  II.  c.  20.     361. 

may  defend  ejectment,  259. 

are  competent  witnesses  in  ejectment,  280.     ,.- 

may  examine  all  the  witnesses  to  a  will,  297. 

evidence  by,  at  common  law,  281. 

F  F 


434  INDE3C . 

HEIRS,  continued, 
evidence  by, 

to  copyholds,,  286. 

customary,  287. 

HERALD'S  BOOKS,  evidence  of  pedigree,  286. 
HERBAGE,  21. 

HEREDITAMENTS,  corporeal,  recoverable  in  ejectment,  1 8. 
HIGH- WAY,  21. 
HOP-YARD,  23. 
HOUSE.—  Vide  Messuage. 


I. 

IMPARLANCE,  new  declaration  formerly  delivered  after,  225, 
IMPOSSIBLE  YEAR, 

rejected  in  notice  to  quit,  135. 

ouster  in  declaration,  223. 
INDUCTION,  how  proved,  303. 
INFANT, 

may  maintain  ejectment,  67. 

enter  at  any  time  to  avoid  fine,  99. 

when  bound  by  his  attorney's  acts,  120. 

must  give  notice  to  quit,  126. 

security  for  costs,  when,  218.  354. 

demise  by,  how  laid,  218. 

liable  for  costs,  when,  338. 
INFERIOR  COURTS, 

ancient  practice  necessary  in,  and  why,  199. 

ejectments,  how  removed  from,  203. 

when  jurisdiction  of  not  pleadable,  203. 

how  to  proceed  in,  202. 

INJUNCTION  against  bringing  ejectments,  when  granted,  352. 
INSOLVENT  DEBTOR, 

assignee  of,  may  maintain  ejectment,  67. 
evidence  required  by,  306. 

not  discharged  from  liability  to  mesne  profits,  387. 
INSURANCE  against  fire, 

covenant  for,  runs  with  land,  when,  74. 
INSTITUTION,  how  proved,  303. 
INTRUDER,  not  within  32  Hen.  VIH.  c.  33.     42. 
IRELAND, 

premises  described  by  terms  used  in,  24. 

security  for  costs  on  demise  by  resident  in,  354. 
ISSUE, 

must  agree  with  declaration,  273. 

how  made  up,  273. 

variance  between  and  record,  how  to  proceed,  when,  323. 

general,  commonly  left  with  consent,  rule,  265,  269. 
in  action  for  mesne  profits,  386. 


INDEX. 

J. 

JOINT-TENANTS, 

may  maintain  ejectment  against  co-tenants,  when,  54,  91. 
when  affected  by  21  Jac.  I.  c.  16,    54. 
demise  hy,  how  laid,  209. 
entry  of  one  is  entry  of  all,  100. 
possession  of  one  is  possession  of  all,  54,  98. 
what  acts  of,  are  ousters  of  companions,  54. 
fine  by  one  no  ouster  of  others,  98. 
notice  to  quit,  by  one  will  bind  all,  126  (6),  128. 
to  one,  will  bind  all,  when,  131. 
by  agent  of,  how  to  be  given,  126  (b) 
service  of  declaration  upon,  236. 
special  consent  rule,  when  granted  to,  263. 
evidence  in  ejectments  by,  277. 

may  bring  action  against  co-tenants  for  mesne  profits,  382. 
JUDGMENT,  in  ejectment, 
is  not  final,  327,  351. 
possession  only  is  recovered  by,  327.  351. 
must  be  entered  according  to  the  verdict,  328. 
intendment  after,  in  favour  of  claimant,  328,  &c. 
how  entered,  relictd  verificatione,  273. 

when  defendant  will  not  confess,  322. 
whole  premises  are  recovered,  331. 
part  of  whole  premises  are  recovered,  33 1 . 
some  parcels  only,  301. 
sole  defendant  dies,  332. 
some  of  several  die,  332. 
against  feme,  when  baron  dies,  334. 
is  not  evidence  in  a  second  ejectment,  215. 
when  evidence  in  action  for  mesne  profits,  212.  388,  389. 
when  entered  for  want  of  plea,  269. 
formerly  entered  quod  defendens  capiatur,  331  (c). 
casual  ejector  cannot  confess,  204. 
proceedings  to,  in  ancient  practice,  200. 202. 
arrest  of,  motion  for,  326. 
against  casual  ejector. —  Vide  Casual  Ejector. 
JURISDICTION, 

may  be  pleaded  to  in  ejectment,  270. 
of  inferior  court,  cannot  be  pleaded  when,  203. 
rule  to  plead  to,  when  granted,  270. 
how  drawn  up,  271. 


K. 

KING, 

may  maintain  ejectment  semble,  78. 

how  under  8  Hen.  VI.  c.  16,  and  18  Hen.  VI.  c,  6.     79. 
is  not  within  21  Jac.  I.  c.  16.     46. 

F  P  2 


436  INDEX. 

KING,  continued. 

when  concluded  by  9  Geo.  III.  c.  16.    46  (a). 
KITCHEN,  27. 
KNEAVE  of  LAND,  24. 

L. 

LADY-DAY,  notice  to  quit  at  generally,  how  construed,  136. 
LAND, 

how  to  be  described  in  demise,  27. 

piece  of,  ejectment  will  lie  for,  when,  27. 

general  occupation  of,  what  is,  105. 
LANDLORD, 

jus  disponendi  in,  158. 

tenant  may  dispute  title  of,  when,  276. 

by  common  law  cannot  be  sole  defendant,  quare,  255,  257. 

who  may  defend  as,  under  11  Geo.  II.  c.  19.     256,  &c. 

may  defend  in  tenant's  name,  261. 

admitted  to  defend,  after  cognovit  by  tenant,  273. 

how  to  appear  as,  265. 

how  to  proceed  if  improper  person  admitted  to  defend  as,  260. 

when  defendant,  judgment  how  signed,  263,  267. 

error,  how  brought  by,  348. 

remedies  for,  under  stat.  1  Geo.  IV.  c.  87.    367,  &c, 
1  Win.  IV.  c.  70.    376,  &c. 

evidence  in  ejectments  by, 

on  termination  of  lease,  311. 
notice  to  quit,  312. 
forfeiture  of  lease,  316. 
LATITAT,  251. 

LAY  IMPROPRIATORS,  evidence  by,  for  tithes,  304. 
LEASE, 

by  cestui  que  trust,  no  bar  to  trustee,  88. 

possession  under  treaty  for,  effect  of,  121. 

when  tenancy  created  under  a  void,  110. 

when  entry  necessary,  upon  a  forfeiture,  to  avoid,  196. 

cannot  exist  without  a  reversion,  177. 

who  may  make  a  joint,  209. 

determinable  generally  at  third  or  sixth  years, how  construed,  137. 

assignment  of,  when  presumed,  318. 

notice  to  produce,  when  necessary,  317. 

forfeiture  of. —  Vide  Covenant. 

agreement  for,  what  words  will  create,  113,  &c. 

evidence  by  landlord  in  ejectment,  on  expiration  of,  311. 

forfeiture  of,  316. 

in  ancient  practice,  actually  executed,  11,  200. 

in  modern  practice,  feigned  only,  15. 

confessed  by  defendant,  262. 
LICENSE,  to  work  mines,  20. 

if  written  required,  parol  insufficient,  191. 
LIMITATIONS,  statute  of,  45. 

who  not  within,  46,  62. 


INDEX. 


437 


LIMITATIONS,  continued. 

quaere,  if  lord  of  manor  bound  by,  upon   forfeiture  by  a   copy- 
holder, 62. 

when  join  tenant,  &c.  affected  by,  54. 

extension  of  time  in  second  section,  how  construed,  46.  55,  &c. 

does  not  operate  between  trustee  and  cestui  que  trust,  51. 
against  lord  of  manor,  when,  52. 

entry  not  necessary  to  avoid,  102. 

operation  of,  will  bar  ejectment,  45.  77. 

barred  by  payment  of  interest  on  mortgage,  51. 

need  not  be  pleaded  in  ejectment,  270. 

must  be  pleaded  in  action  for  mesne  profits,  386. 
LIQUORICE,  demise  of  lands  producing,  138. 
LODGINGS,  notice  to  quit,  how  regulated,  140. 
LUNATIC, 

may  maintain  ejectment,  91. 

committee  of,  cannot  maintain  ejectment,  91. 

service  of  declaration  upon,  241. 

stat.  21  Jac.  I.e.  16,  does  not  run  against,  45. 

M. 

MADDER,  demise  of  lands  producing,  138. 
MAINTENANCE,  11,  174  (c). 
MANOR,  ejectment  will  lie  for  a,  29. 
MANOR,  Lord  of  a, 

may  maintain  ejectment  on  a  forfeiture,  when,  61. 
evidence  by,  on  a  forfeiture,  308. 

on  a  seizure,  pro  defectu  tenentis,  307. 
in  ejectment  for  mines,  308. 
quare,  if  21  Jac.  I.  c.  16,  runs  against  a,  62. 
queere,  if  entitled  to  defend  ejectment,  260. 
MARRIAGE,  how  proved,  283.  285. 
MESNE  PROFITS,  action  for, 
when  invented,  379. 
nature  and  uses  of,  380. 

may  be  recovered  in  ejectment,  when,  321,  371,  380. 
may  be  waived, 

for  assumpsit  for  use  and  occupation,  when,  380. 
for  debt  on  4  Geo.  II.  c.  28.     381. 

11  Geo.  II.  c.  19,  quare,38l  (b). 
may  be  brought  pending  error,  381 . 
is  bailable  at  discretion,  381. 
must  be  brought,  by  whom,  382. 

against  whom,  383. 
declaration  in,  how  framed,  384. 
pleas  in,  what  are  good,  386. 
money  cannot  be  paid  into  court  in,  388. 
evidence  in, 

when  profits  antecedent  to  demise  recovered,  391. 

subsequent  to  demise,  388. 
damages  in, 

have  reference  to  time  of  defendant's  occupation,  390. 


438  INDEX. 

MESNE  PROFITS,  continued. 
damages  in, 

not  confined  to  rent  of  premises,  391. 
may  include  costs  of  ejectment,  391. 
profits  before  fine  avoided,  not  recoverable  as,  392. 
costs  in, 

second  ejectment  stayed  till  paid,  359. 
judge  must  certify,  if  under  40s.,  392. 
when  unnecessary  after  error,  393. 
law  regarding  in  Scotland,  386  (a). 
MESSUAGE, 

ejeciment  will  lie  for,  25. 

part  of,  27. 

notice  to  quit,  bow  regulated,  139. 
rent  must  be  demanded  at,  when,  161. 
MICHAELMAS, 

notice  to  quit  at  generally,  how  construed,  136. 
holding  generally  from,  how  construed,  145. 
MILLS,  27. 
MINES,  20.  30. 308. 
MOIETY,  undivided, 

cannot  be  a  disseissin  of,  54. 
recoverable  on  demise  of  whole,  211. 
MOOR  and  MARSH,  28. 
MORTGAGEES, 

may  maintain  ejectment,  60. 

without  demanding  possession,  when,  108. 
after  notice  to  quit,  when,  108. 
may  defend  as  landlords,  260. 

unless  not  interested  in  suit,  260. 
how  protected  by  4  Geo.  II.  c.  28.     167. 
proceedings  by,  when  stayed  tinder  7  Geo.  II.  c.  20.     36  J,  &c. 
evidence  in  ejectments  by,  306. 
assignee  of. —  Vide  Assignee. 
MORTGAGOR 

not  tenant  to  mortgagee,  60.  108. 

competent  witness  for  mortgaged  lands,  280. 
relation  of  to  mortgagee  after  forfeiture,  60  (c). 
fine  levied  by,  inoperative,  98. 
tenant  of,  need  not  give  notice  of  ejectment  by  mortgagee,  256. 

qutere,  if  liable  for  mesne  profits,  384. 
when  tenant  to  mortgagee,  108,  109. 
MOUNTAIN,  24. 


N 

NON-SUIT, 

for  not  confessing  lease,  &c. 

optional  in  ejectment  by  landlord,  321. 

how  to  proceed  on,  322. 

error  cannot  be  brought  after,  348 


INDEX.  439 

NONSUIT,  continued, 

for  not  confessing  lease,  &c. 

costs,  how  recoverable  on,  334. 

when  not  recoverable  on,  335. 
lessor  liable  to,  before  signing  of  consent  rule,  272. 
NOTICE  TO  APPEAR, 

to  whom  to  be  addressed,  229. 

by  whom  to  be  subscribed,  233. 

should  specify  term  by  name,  231. 

time  of  appearance  of  tenant,  how  regulated  by,  230. 

may  be  amended,  233. 

how  framed  in  ancient  practice,  13,  200. 

in  proceedings  under  stat.  1  Geo.  IV.  c.  87.     375. 
quare,  if  necessary  in  inferior  courts,  202. 
NOTICE  OF  TRIAL, 

same  as  in  other  actions,  274. 

except  under  stat.  1  Win.  IV.  c.  70.     376. 
proceedings  stayed  after,  360.  ,  . 

NOTICE  TO  QUIT, 

origin  and  history  of,  105,  &c. 
must  be  given, 

in  commoii  tenancies  from  year  to  year,  106. 
under  implied  tenancies  from  year  to  year,  107. 
to  personal  representatives,  when,  125. 
is  not  necessary, 

at  expiration  of  lease,  105. 

agreement  for  a  lease,  112. 
from  mortgagee  to  mortgagor,  60.  108. 
when  tenant  attorns  to  another,  124. 
to  under-tenants  of  mortgagor,  when,  108.  384. 
from  assignee  of  mortgagee,  when,  109. 
time  of  giving,  106.  138.  142.  146. 
time  for  expiration  of, 

in  common  tenancies,  138.  142. 
in  cases  of  lodgings,  140. 
under  implied  tenancies,  142. 

particular  customs,  or  agreements,  140,  141. 
when  tenant  enters  at  several  times,  146. 
irregularity  as  to,  how  waived,  275. 
generally,  at  end  of  current  year,  good,  142. 

when  to  be  so  framed,  142. 

on  a  particular  day,  must  be  day  tenancy  began,  142. 
by  whom  to  be  given,  126,  &c. 
to  whom  to  be  given,  130,  &c. 
how  to  be  served,  131. 

framed,  132,  &c. 
by  parol,  when  good,  132. 

not  made  good  by  parol  consent,  155. 
must  be  in  writing,  when,  132. 
how  to  be  addressed,  132.. 
must  not  be  alternative  or  ambiguous,  133. 

what  so  deemed,  133,  &c. 


440  INDEX. 

NOTICE  TO  QUIT,  continued. 

must  contain  all  things  comprised  in  the  demise,  136. 

may  be  waived,  and  how,  149,  &c. 

may  be  given  by  tenant,  156. 

implied  tenancy,  when  rebutted  by,  123. 

service  of,  how  to  be  proved,  312,  &c. 

when  and  how  evidence  of  commencement  of  tenancy,  314,  &c. 

power  of  giving,  necessarily  incidental  to  tenancy  from  year  to 

year,  106. 

evidence  necessary  in  an  ejectment  on,  312,  &c. 
subscribing  witness  to,  unnecessary,  133. 

O. 

OCCUPATION,  permissive, 

when  tenancy  created  by,  121. 
OCCUPANT,  special,  71. 
general,  50. 
ORCHARD,  23, 
OUSTER, 

actual,  what  acts  amount  to,  54. 

evidence  of,  when  necessary,  54.  200.  263.  27& 
consent  rule  substitute  for,  when,  263. 
of  plaintiff,  how  stated  in  declaration,  222,  &c. 
nonsuit  for  not  confessing,  262. 
of  tithes,  how  laid,  224. 

OVERSEERS  of  the  poor,  service  of  declaration  upon,  237. 
may  maintain  ejectment,  79. 


P. 

PANNAGE,  22. 
PARCENERS, 

may  maintain  ejectment  against  each  other,  when,  55.  91. 

when  affected  by  21  Jac.  I.  c.  16.     54.  56. 

demise  by,  how  laid  209. 

entry  of  one  is  entry  of  all,  100. 

possession  of  one  is  possession  of  all,  54.  100. 

what  acts  of,  are  ousters  of  companions,  54. 

fine  by  one,  no  ouster  of  others,  55. 

must  all  join  in  notice  to  quit,  127. 

notice  to  quit  to  one,  will  bind  all,  when,  131. 

service  of  declaration  on,  236. 

special  consent  rule,  when  granted  to,  263. 

evidence  in  ejectments  by,  277. 

may  bring  action  for  mesne  profits,  382. 
PARISH  REGISTERS,  when  evidence,  and  for  what,  282. 
PARISH, 

need  not  be  stated  in  demise,  218. 

if  stated  in  demise,  material,  2 18. 


INDEX.  4H 

PARISH,  continued. 

what  description  of,  sufficient,  219.* 
how  stated  when  more  than  one,  220. 
amendment  of  permitted,  229. 
PARSON, 

cannot  bring  ejectment  for  glebe  after  sequestration,  81. 
cannot  defend  for  right  to  perform  divine  service,  26 1 . 
evidence  in  ejectments  by,  302. 

PARTICULARS  of  breaches,  defendant  entitled  to,  353. 
PASSAGE-ROOM,  27. 
PASTURE  OF  SHEEP,  27. 
PEASE,  acres  of,  29. 

PEDIGREE— when  and  how  proved,  282,  &c. 
PEER,  attachment  against,  how  granted,  338. 
PERSONAL  REPRESENTATIVES,        , 
may  maintain  ejectment,  70. 

not  on4Geo.  II.  c.  28.  if  land  devised,  171. 
must  give  notice  to  quit,  125. 
can  take  advantage  of  a  forfeiture,  when,  189. 
included  generally,  in  proviso  for  executors  to  re-enter,  129. 
are  not  bound  by  consent  rule,  320. 
entitled  to  costs,  when,  335. 
liable  for  costs,  when,  335 
consent  of,  when  necessary  to  a  devise,  71. 
evidence  in  ejectments  by,  306. 
when  credible  witnesses  to  prove  will,  296. 
wives  of,  when  credible  witnesses,  296. 
not  liable  for  mesne  profits,  when,  383. 
PLEA, 

of  general  issue  is  not  guilty,  270. 

special,  seldom  pleaded,  270. 

to  jurisdiction  allowed,  270. 

ancient  demesne  pleadable  in  ejectment,  272. 

how  pleaded,  272. 

accord  and  satisfaction,  formerly  a  good,  270  (c). 
of  release  by  defendant,  good  formerly,  204. 

lessor  of  plaintiff  cannot  now  be  pleaded,  274. 
puts  darrien  continuance,  274. 
rightly  entitled,  not  a  nullity,  269,  (6). 
signing  judgment  for  want  of,  269. 
withdrawn,  judgment  how  entered  after,  273. 
in  action  for  mesne  profits, 

of  general  issue  is  not  guilty,  386. 
statute  of  limitations,  good,  386. 
bankruptcy,  not  good,  387. 

PLEA-ROLL,  death  of  defendant  suggested  on,  332. 
POOL  OF  WATER,  20. 
POSSESSION, 
adverse, 

for  twenty  years,  good  title  in  ejectment,  77. 
what  will  amount  to,  46,  &c. 
not  adverse, 

if  parties  claim  under  the  same  title,  47, 


442  INDEX. 

POSSESSION,  continued, 
not  adverse, 

if  possession  and  title  consistent,  47. 

against  lord,  if  originally  taken  by  his  consent,  52. 

aliter,  if  taken  without  consent,  52. 
if  party  claiming,  was  never  in  law  dispossessed,  53. 
if  possessor  has  acknowldeged  claimant's  title,  56. 
vacant, 

ancient  practice  necessary  on,  and  why,  199. 
premises  must  be  entirely  deserted  to  constitute,  199  (a), 
formal  proceedings  on,  200. 
primd  facie  evidence  of  property,  281. 
how  to  be  delivered  by  sheriff,  24.  34 1 . 
lessor  of  plaintiff  must  be  entitled  to,  33,  275. 
recovery  in  ejectment  is  of  the,  327. 
who  have  a  joint,  210. 

of  one  joint  tenant,  &c.  is  possession  of  all,  54. 
of  defendant,  how  proved,  277. 

admitted  by  consent  rule,  262. 
demand  of  before  ejectment, 

when  necessary,  121. 
when  not,  60,  122. 
POSTEA, 

how  indorsed,  if  defendant  will  not  confess,  322. 

if  some  of  several  will  not,  323. 
when  costs  taxed  on,  335. 

POSTHUMOUS  SON,  demise  by,  when  laid,  213. 
PRACTICE,  ancient, 

general  detail  of,  10,  &c. 
inconveniences  attending,  13. 
when  now  necessary,  199. 
how  to  seal  lease,  &c.  in,  200. 
how  to  proceed  to  judgment  in,  201,  202. 
no  person  admitted  to  defend  in,  201. 
PRACTICE,  modern, 

when  invented,  14. 

outline  of,  15. 

not  applicable  to  vacant  possessions,  199. 

in  inferior  courts,  199. 
PREBEND AL  STALL,  19. 
PREMISES, 

how  described  in  demise,  22,  218.  &c. 
mis-description  of,  when  fatal,  219. 
locality  of,  must  be  proved  as  stated,  277. 
PRESENTATION, 
simoniacal  void,  81. 
how  proved,  303. 
PRIMA  TONSURA,  21. 

PROBATE  OF  WILL,  when  evidence,  and  when  not,  289.  299,300. 
PROCEEDINGS,  staying  of, 

how  and  when  stayed,  under  4  Geo.  II.  c.  28.     170,  &c. 

7  Geo.  II.  c.  20.     361,  &c. 
stayed,  when  variance  between  issue  and  record,  323. 


INDEX.  443 

PROCEEDINGS,  staying  of,  continued. 

stayed  until  particulars  of  breaches  delivered,  353. 
when  stayed,  until  security  for  costs  given, 

in  action  of  ejectment,  354. 
in  action  for  mesne  profits,  382. 
in  second  ejectment, 

till  costs  of  first  paid,  355,  &c. 

action   for  mesne  profits 

paid,  359. 

pending  error  in  first,  361. 
not  stayed  in  second  ejectment, 

when  party  in  custody,  359. 
until  costs  in  equity  paid,  359. 
when  verdict  obtained  by  fraud,  360. 
how  stayed,  when  two  ejectments  are  depending  at  once,  358.  36 1 . 

several  ejectments  on  one  title,  361. 
PROCESS  not  sued  out  in  ejectment,  206. 
PROVINCIAL  TERMS,  premises  described  by,  24. 
PROVISO  for  re-entry, 

for  non-payment  of  rent, 
origin  of,  157. 

at  common  law,  how  enforced,  160. 
provisions  of  stat.  4  Geo.  II.  c.  28.  respecting,  162. 

proceedings  under,  168,  &c. 
stat.  11  Geo,  II.  c.  19.     175,  note. 
how  waived,  173. 

not  waived  by  taking  insufficient  distress,  when,  174. 
for  breach  of  covenant, 

may  be  enforced  on  agreement  for  lease,  188. 
who  may  take  advantage  of,  191. 

reserved  to  lessor  and  lessee,  lessee  may  enter  alone,  192. 
PUIS  DARRIEN  CONTINUANCE,  274. 
PUR  AUTRE  VIE,  estates  held,  71. 


Q- 

QUARE  EJECIT  INFRA  TERMINUM,  writ  of,  3. 
QUARE  IMPEDIT,  patron  must  resort  to,  when,  302. 
QUARTER  OF  LAND,  24. 


R. 


RECEIVER  IN  CHANCERY, 

may  give  notice  to  quit,  129. 
service  of  declaration  upon,  not  good,  238. 
RECORD, 

how  made  up,  273. 

variance  between  issue  and,  how  to  proceed  when,  323. 


444  INDEX. 

RECTORS, 

may  maintain  ejectment,  when,  80. 

confirm  former  tenancies,  how,  120. 
evidence  in  ejectments  by,  302. 
RE-ENTRY,  proviso  for, 
origin  of,  157. 

holding  not  adverse  if  not  enforced,  50. 
operates  only  during  the  lease,  198. 
for  rent  in  arrear, 

forms  at  common  law  upon,  160. 

when  now  necessary,  162.  169. 
how  and  when  to  proceed  upon,  under  4  Geo.  II.  c.  20 

166,  &c. 

evidence  in  ejectment  upon,  316. 
for  breach  of  covenant — Vide  Covenant, 
cannot  be  reserved  to  a  stranger,  191. 
right  of,  how  waived,  149,  &c.  192,  &c. 
REGISTER,  PARISH,  when  evidence,  282. 
RELICTA  VERIFICATIONS  judgment,  how  entered,  273. 
REMAINDER-MAN, 

when  required  to  give  a  notice  to  quit,  110.  123. 
time  at  which  such  notice  must  expire,  143. 

for  entry  of,  to  avoid  a  fine,  97. 
laches  of  one  no  prejudice  to  another,  97. 
not  competent  witness  in  ejectment,  280. 
RENT, 

receipt  of,  when  tenancy  created  by,  107.  110. 
old  doctrine  respecting,  112. 
notice  to  quit  waived  by,  when,  149,  &c. 
forfeiture  waived  by,  when,  192. 
by  feme,  after  separation  from  baron,  120. 
distress  for,  when  waiver  of  notice  to  quit,  154. 
demand  of, 

when  necessary  upon  forfeiture,  162.  168. 
how  to  be  made  at  common  law,  160. 
not  necessary  under  stat.  4  Geo.  II.  c.  28.     162. 
amount  in  particulars,  need  not  be  proved,  317. 
non-payment  of,  proviso  for  re-entry  for. —  Vide  Proviso, 
increase  of,  new  tenancy  not  created  by,  144. 
refusal  to  pay,  when  disclaimer  of  tenancy,  125. 
usual  notice  to  quit  required  though  payable  quarterly,  141. 
double,  action  for,  154. 
in  arrear,  how  recoverable  under  4  Geo.  II.  c.  28.     162. 

forfeiture  by  reason  of,  how  waived,  173. 
notice  to  produce  receipts  of,  312. 
action  for  double,  154.  381  (6). 

RENT-CHARGE,  grantee  of,  may  bring  ejectment,  when,  71. 
REPLICATION,  rule  for,  when  granted,  272. 
REPLY  GENERAL,  defendant  when  entitled  to,  288.  301. 
REPUTATION,  when  evidence,  283,  &c. 
RESTITUTION,  writ  of,  252. 
REVERSION,  assignee  of — Vide  Assignee. 


INDEX.  445 


REVERSIONER, 

when  required  to  give  a  notice  to  quit,  123. 
time  at  which  notice  to  quit  by,  must  expire,  143. 
when  within  32  Hen.  VIII.  c.  33.     43. 
time  for  entry  of,  to  avoid  a  fine,  97. 
may  take  advantage  of  a  forfeiture,  when,  190. 
RIVULET,  20. 
ROOM,  27. 
RULES  OF  COURT, 

Hilary,  1649.     270. 
Michaelmas,  1654.  200  (c). 
Trinity,  14  Car.  II.     251. 
18  Car.  II.     270. 
32  Car.  II.     248. 
31  Geo.  III.     249. 
Easter,   48  Geo.  III.    249. 


S. 

SCIRE  FACIAS,  when  necessary  in  ejectment,  346.  393. 
SEIZIN  IN  FEE,  how  proved,  281. 
SIGNATURE,  to  will,  290. 

mark  sufficient,  293. 
if  sealing,  sufficient,  291. 
SOCAGE—  Vide  Guardians. 
STABLE,  27. 
STATUTES, 

13  Edw.  I.  c.  24.     6. 
4  Edw.  III.  c.  7.     69. 
8  Hen.  VI.  c.  16.     79. 

18  Hen.  VI.  c.  6.     79. 

4  Hen.  VII.  c.  24.     93. 
1 1  Hen.  VII.  c.  20.     39. 

27  Hen.  VIII.  c.  10.     81,  &c. 
32  Hen.  VIII.  c.  1.     299. 
32  Hen.  VIII.  c.  7.     18. 
32  Hen.  VIII.  c.  28.     38. 
32  Hen.  VIII.  c.  33.     43.  45. 
32  Hen.  VIII.  c.  34.     72. 

2  &  3  Edw.  VI.  c.  13.     81. 
13  Eliz.  c.  7.     67. 
13  Eliz.  c.  10.     218. 
21  Jac.I.  c.  16.     45.  102. 

2  Car.  II.  c.  24.     67. 

16  &  17.  Car.  II.  c.  8.     348.  393. 

17  Car.  II.  c.  8.     332. 

19  Car.  II.  c.  6.     285. 

29  Car.  II.  c.  3.     71.  111.  156.  289. 

5  &  6  Wm.  in.  c.  12.     338. 

8  &  9  Wm.  HI.  c.  1 1.     332.  337. 
10  &  11  Wm.  IH.  c.  16.     213. 


446  INDEX. 

STATUTES,  continued, 

4  Anne,  c.  16.  102. 

8  Anne,  c.  14.  155. 

9  Geo.  I.  c.  16.  78. 

4  Geo.  II.  c.  28.      134.  153.  158.  162.  213.  248.  316. 

366.  367.381. 
7  Geo,  II.  c.  20.     361. 
11  Geo.  II.  c.  19.     154.  175.  255.  267.  381. 
25  Geo.  II.  c.  6,     295. 
9  Geo.  III.  c.  16.     46.  78. 
14  Geo.  III.  c.  78.     74. 
31  Geo.  III.  c.  35.     295. 
43  Geo.  III.  c.  75.     91. 
55  Geo.  III.  c.  12.     80. 
55  Geo.  III.  c.  184.     299. 
55  Geo.  III.  c.  192.     299. 

1  Geo.  IV.  c.  87.     246.  321. 322.  326. 339.  367,  &c.  380. 
6  Geo.  IV.  c.  16.     69.  306.  333. 
1  Wm.  IV.  c.  38.     69.  306. 
1  Wm.  IV.  c.  70.     208.  230.  247.  249.  321.  326.  340. 

376,  &c. 

STATUTE  MERCHANT.—  Vide  Conusee. 
SUBSCRIBING  WITNESSES, 

notice  to  quit  should  not  have,  and  why,  133. 
to  devise  of  freehold,  must  be  three,  290. 

who  may  be,  294. 
SURRENDER, 

of  term,  when  presumed,  89. 

acceptance  of  invalid  notice,  amounts  to,  154. 
of  copyholds,  how  proved,  299. 

not  necessary  to  will  of,  299, 

unless  matter  of  substance,  300. 


T. 

TENANTS, 

joint  and  in  common. 

may  maintain  ejectment  against  co-tenants,  when,  91. 

when  affected  by  21  Jac.  I.  c.  16.     56. 

demise  by,  how  laid,  209. 

entry  of  one  is  entry  of  all,  100. 

possession  of  one  is  possession  of  all,  54.  98. 

what  acts  of,  are  ousters  of  companions,  54,  &c. 

fine  by  one  no  ouster  of  others,  55.  98. 

how  notice  to  quit  should  be  given  by,  127. 

notice  to  quit  to  one  will  bind  all,  when,  131. 

service  of  declaration  upon  one  good  against  all,  236. 

special  consent  rule,  when  granted  to,  263. 

evidence  in  ejectments  by,  277. 

may  bring  action  for  mesne  profits  against  co-tenants,  382. 


INDEX.  447 

TENANTS,  continued. 
in  tail, 

may  discontinue  their  estates,  and  how,  35,  &c. 
maintain  ejectment,  59. 

equitahle,  cannot  make  leases,  88. 

fine  by,  when  avoided  by  entry,  96. 
for  life, 

may  maintain  ejectment,  59. 

entry  necessary  to  avoid  fine  levied  by,  96. 

not  necessary  to  avoid  fine  accepted  by,  99. 

estates  of,  determinable  by  entry  only,  196. 
from  year  to  year, 

may  maintain  ejectment,  59. 
give  notice  to  quit,  156. 

cannot  levy  fine,  97. 

entry  not  necessary  to  avoid  fine  by,  97, 

permissive  occupation  may  create,  121. 

origin  and  history  of,  105,  &c. 

estates  of,  how  determined,  106.  156. 

who  are  implied,  110.  119.  121. 

not  permitted  to  give  cognovit,  273. 
at  will, 

who  where  formerly,  105. 

who  so  denominated  now,  106. 

mortgagors  are  not,  60  (c).  108. 

tenancy  of,  how  determined,  121. 

demise  against,  how  laid,  214. 
in  possession, 

declarations  by,  as  to  commencement  of  tenancies,  314. 

how  to  serve  declaration  upon,  234,  &c. 

must  give  notice  of  delivery  of  declaration,  when,  256. 

appearance  by,  how  made,  265. 

how  to  act  if  material  witnesses,  266. 

service,  of,  declaration  upon  one  of  two,  236. 

not  competent  witnesses,  when,  270. 

may  dispute  landlord's  title,  when,  32.  276. 
TENEMENT, 

not  sufficient  description  in  ejectment,  25. 

unless  other  words  added,  26. 

may  be  struck  out  of  declaration  after  verdict,  25  (g). 
TERM, 

when  first  recovered  in  ejectment,  9. 
in  declaration — Vide  Demise, 
for  years, 

not  within  statute  of  uses,  87. 

surrender  of,  when  presumed,  88. 

outstanding  will  bar  ejectment,  33. 

assignment  of,  not  a  lease,  177. 

notice  to  quit  not  necessary  at  end  of,  105. 
TERRE-TENANTS, 

scire  facias  in  ejectment  must  be  against,  346. 
TERRIERS,  when  evidence,  304. 


448  INDEX. 

TITHES, 

ejectment  will  lie  for,  and  when,  18.  80. 
how  to  be  described  in  demise,  29. 
demise  of,  how  laid,  217. 
ouster  of,  how  laid,  224. 
evidence  in  ejectments  for,  302. 
TITLE  LEGAL,  32.  275. 

TOMB-STONE,  inscription  on,  proof  of  death,  286. 
TONSURA  PRIMA,  21. 
TOWNSHIP,  24. 
TRIAL, 

notice  of. — Vide  Notice, 
how  to  proceed  at, 

when  a  sole  defendant  will  not  confess,  322. 
some  of  several  will  not  confess,  323. 

old  practice  in  such  case,  323  (b). 
variance  between  issue  and  record,  323. 
day  of  demise  posterior  to  time  of,  324. 
at  bar,  when  and  how  granted,  324. 
new,  how  and  when  moved  for  and  granted,  326. 
proceedings  under  4  Geo.  II.  c.  28.  not  staid  after,  167.  169. 
TROVER,  verdict  in,  110  evidence  of  possession,  309. 
TRUSTEES, 

may  maintain  ejectment,  33. 

in  what  cases,  81,  &c. 
demises  by,  when  necessary,  211. 
stat.  21  Jac.  I.  c.  16,  runs  against  when,  50. 
TRUSTS,  when  executed  by  statute  of  uses,  82,  &c. 


U. 


UNDER-TENANT, 

service  of  declaration  should  be  upon,  235. 
cannot  dispute  original  lessor's  title,  276. 
bound  by  notice  to  quit  to  tenant,  130. 
delivery  of  notice  to  quit  to  relation  of,  not  good,  130. 
UNDERWOOD,  28. 
USE  AND  OCCUPATION,  action  for, 

when  waiver  of  notice  to  quit,  154. 

what  mesne  profits  may  be  recovered  in,  380. 


V. 


VALUE,  DOUBLE,  action  for,  153. 
VARIANCE  between  declaration  and  issue,  273. 

issue  and  record,  323. 

verdict  and  judgment,  328. 

VENIRE,  how  awarded  when  one  defendant  dies,  332. 
VENUE,  209. 


INDEX.  449 

VERDICT, 

is  not  evidence  in  second  ejectment,  327. 

is  ground  of  judgment,  328. 

every  intendment  made  to  support,  328,  &c. 

title  defectively  set  out,  cured  by,  331. 

entered  for  defendants  who  do  not  appear,  323. 

semble,  will  cure  misjoinder  of  assault  and  battery  with  ejectment, 

204. 

VESTRY,  27. 
VICAR, 

may  maintain  ejectment,  when,  80. 

evidence  in  ejectments  by,  302. 


W. 

WAIVER — Vide  Notice  to  Quit  and  Covenant. 
WASTE, 

can  only  be  committed  of  thing  demised,  182. 
security  not  to  commit,  322.  370.  372. 
rule  not  to  commit  pending  error,  350. 
encroachment  on,  quaere  to  whom  it  belongs,  51. 
inclosure  from,  62. 
WATER-COURSE,  21. 
WIDOW  may  bring  ejectment  for  her  free  bench,  65. 

not  for  dower  before  assignment,  66. 
WIFE.— Vide  Feme  Covert. 
WILL, 

forms  necessary  to  pass  freeholds  by,  290,  &c. 

how  proved,  297. 

what  sufficient  to  pass  copyholds,  299. 
copy  of,  when  evidence,  289.  299.  300. 
probate,  of,  when  evidence,  299,  300. 

when  not,  289. 
WITNESSES, 

when  incompetent  from  interest,  279.  295. 
to  a  devise  of  freeholds, 

how  many  necessary,  290. 
mode  of  attestation  of  291. 
who  may  be,  295. 

not  be,  296. 

co-lessor  cannot  be  compelled  to  be,  281. 
credible,  who  are,  294, 
when  dead,  &c.  will  how  proved,  297. 


O  G 


PRACTICAL  FORMS. 


AFFIDAVIT, 

to  move  for  judgment  against  casual  ejector,  398. 
of  executing  power  of  attorney,  396. 
of  service  of  declaration, 

upon  one  tenant  only,  402. 

when  several  tenants  are  in  possession,  403. 

service  is  upon  one  tenant  and  wife  of  another,  403. 

upon  stat.  4  Geo.  II.  c.  28.     404. 
for  rule  for  tenant  to  confess  lease  and  entry  only,  407. 
to  accompany  plea  of  ancient  demesne,  408. 

CONSENT  OF  ATTORNIES  for  tenant  to  be  admitted  to  defend, 

406. 
CONSENT  RULE,  common,  407. 

to  confess  lease  and  entry  only,  409. 

DECLARATION  by  original,  on  a  single  demise,  399. 

on  a  double  demise  with  one  ouster, 

401. 

with  two  ousters, 
402. 

JUDGMENT  for  plaintiff  by  nil  dicit,  with  a  remittitur  damna,  405. 

as  to  part  of  the  premises,  and  for 
defendant  on  a  nolle  prosequi  as  to  the  residue,  411. 

LETTER  of  attorney  to  enter  and  seal  a  lease  on  the  premises,  396. 
LEASE  in  ancient  practice,  397. 

NOTICE  to  appear  in  ancient  practice,  397. 
modern  practice,  400. 

NOTICE  to  quit,  by  landlord  to  tenant,  from  year  to  year,  395. 
by  an  agent  for  the  landlord,  395. 
where    the    commencement   of    the    tenancy  is 

doubtful,  395. 
by  a  tenant  from  year  to  year,  396. 


INDEX.  451 

PLEA  of  not  guilty,  410. 

ancient  demesne,  410. 
POSTEA  for  defendant  on  a  nonsuit,  for  not  confessing  lease,   entry 

and  ouster,  411. 
RULE, 

for  judgment  for  the  whole  premises,  404. 

part  only,  405. 
where  part  of  premises  are  tenanted  and  part  un- 

tenanted,  405. 

to  authorize  tenant  to  confess  lease  and  entry  only,  408. 
for  admitting  landlord  to  defend,  409. 
for  execution  against  the  casual  ejector,  where  the  landlord  had 

been  made  defendant,  and  failed  at  the  trial,  412. 
for  staying  proceedings, 

till  guardian  be  appointed  for  infant  lessor  to  answer  costs,  417. 

security  be  given  for  costs,  417. 

until  costs  of  former  action  in  another  court  be  paid,  417. 
on  payment  of  mortgage  money.  &c.  417. 
rent,  &c.  418. 

WRIT, 

original  and  return  thereto,  399. 
of  habere  facias  possessionem,  412. 
on  a  double  demise,  413. 
under  stat.  1  Wm.  IV.  c.  70.     414. 
and  fieri  facias  in  one,  414. 

capias  ad  satisfaciendum  in  one,  415. 

including  costs  in  error,  415. 
of  restitution,  416. 
of  scire  facias  for  plaintiff,  417. 


ERRATUM. 
Page  97,  line  3  from  the  bottom,  insert  years  instead  of  life. 


THE  END. 


LONDON: 

IBQTSON    AND    PALMER,    PRINTERS,    SAVOY    STREET,    STRAND. 


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ucso^^^Ii 


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